When I joined the Court of Appeals two decades ago and proudly circulated my first few draft opinions, then-Chief Judge Eagles took me aside and said he would only concur in the result of any opinion that contained a footnote. Though I eventually managed to sneak a few past him, I took his reasons to heart (at least for a while; you’ll find them in some of the opinions I wrote while on the Supreme Court.  So shoot me.)

Chief Eagles believed that anything worth saying should be in the body of the opinion and that footnotes were a potential source of trouble.  I understood his point of view.  In the Supreme Court of the United States, Justices will sometimes use footnotes as a place to “bury bones,” introducing new language or novel concepts that they will later dig back up and cite as precedent in the body of a majority opinion.  Edward Lazarus, a former clerk for Justice Blackmun, wrote of the process in his memoir, Closed Chambers.  (Times Books, 1998, pp. 364-65).

I thought of the uses of footnotes while reading the opinions issued by the Supreme Court of North Carolina in 2018.  My impression was that the Court was embracing footnotes to a noticeable extent so I decided to take a closer look.  My initial process was to review and compare the cases issued in 2018 with those issued in 2017 to see if any immediate increase in the number or size of footnotes was apparent.  While reviewing those cases, I also tried to spot any bones being buried.

Here’s what I found:

From January to March 2, 2018, the Court has issued 11 written opinions.  This total includes one per curiam opinion with language (i.e., analysis by the Court beyond an announcement of the result).

The average length of those 11 opinions is 22.5 pages.
The average number of footnotes per opinion is 6.6.
The average footnote length is 55 lines

These numbers are somewhat distorted because they include January’s Cooper v. Berger opinion, which is atypically long due to the complexity of the issues and also because it drew two dissenting opinions.  If Cooper is not considered, the remaining 10 opinions issued in March 2018 yield the following:

The average length of these 10 opinions is 17.4 pages.
The average number of footnotes per opinion is 4.3.
The average footnote length is 33.4 lines.

Now let’s compare 2018 with the written opinions issued by the Supreme Court in 2017.  As in 2018, one batch of 2017 opinions included a per curiam opinion with language. This per curiam had one footnote.

8 December 2017: Five written opinions.

The average length of each opinion was 22.5 pages.
The average number of footnotes per opinion was 7.1.
The average length of each footnote was 27 lines.

3 November 2017: Three written opinions

The average length of each opinion was 15 pages.
The average number of footnotes per opinion was 3.6.
The average length of each footnote was 15 lines.

29 September 2017: Seven written opinions

The average length of each opinion was 25.5 pages.
The average number of footnotes per opinion was 4.
The average length of each footnote was 32.9 lines.

18 August 2017: Six written opinions

The average length of each opinion was 15 pages.
The average number of footnotes per opinion was 3.7.
The average length of each footnote was 26 lines.

9 June 2017: Fourteen written opinions

The average length of each opinion was 19 pages.
The average number of footnotes per opinion was 3.9.
The average length of each footnote was 27 lines.

5 May 2017: Three written opinions

The average length of each opinion was 11 pages.
The average number of footnotes per opinion was 2.
The average length of each footnote was 13.5 lines.

17 March 2017: Two written opinions

The average length of each opinion was 19.5 pages.
The average number of footnotes per opinion was 2.5.
The average length of each footnote was 10.5 lines.

27 January 2017: One written opinion (the math got easier here)

The opinion length was 44 pages.
The footnotes in the opinion numbered 17.
The footnote length in lines was 137.

Some caveats are in order.  First, the listed length of the opinion is the total of the majority opinion plus any dissents and concurrences.  The presence of a separate writing in an opinion may stimulate footnotes if the writers used footnotes to address each other’s concerns.  Second, many footnotes are short and provide only minor procedural information, such as the fact that pseudonyms are used in a juvenile or domestic case.  Third, quotations from statutes or lengthy string citations that would otherwise disrupt the flow of an opinion are sometimes stashed in a footnote by a merciful author.

My impression is that the Supreme Court Justices are not using footnotes to bury bones.  Most footnotes are relatively short and purely informational.  A few cases (see Cooper, above) tend to have a disproportionate impact on these averages, but even here the footnotes are pertinent to the issue under discussion.

Still, whatever their purpose, footnotes appear to be a routine part of recent Supreme Court opinions.  In the 52 written opinions issued from January 2017 to March 2018, I found only one that had no footnotes (N.C. Dept. of Transp. v. Mission Battleground Park, DST), and only one that had no footnotes in the majority opinion and a single footnote in the dissent (Davis v. Hulsing Entrs.).  The remaining 50 written opinions had a total of 178 footnotes.

So I decided to look back a decade and see if a different pattern emerged.  In 2007, the Court issued 44 written opinions (including 6 that were per curiam opinions with language).  Of those, 24 had no footnotes, while the remaining 20 sported a total of 38 footnotes.  Content of the footnotes did not appear to have changed much in that many were short and informational while only one or two were mammoth disquisitions.

This very informal survey indicates that footnotes have taken root in the last decade.  Reasons suggest themselves but are hard to pin down.  For instance only three Justices who were on the Court in 2007 remain in 2017-18, and only two of them (Chief Justice Martin and Justice Hudson) served on the bench with Chief Judge “Footnote Slayer” Eagles.  In addition, judicial clerks have rotated in and out as academic trends have changed.  Whatever the reason, the undeniable proliferation of footnotes over the years does not seem to be part of any sinister or worrying trend.

Even so, the question arises whether a comment or citation in a footnote has equal precedential value as material in the body of an opinion.  I could not find a case directly on point, though in State v. Barnes, 345 N.C. 184, 230, 481 S.E.2d 44, 69-70, (1997), one catches a whiff of disapproval as the Court disregarded a statement in an earlier opinion that was set out “in dicta in a footnote and without reference to any authority.”  Nevertheless, if statements or discussions in a footnote are determined to have precedential value, they become prime real estate for burying bones for any Justice so inclined.

Of course, footnotes have other uses.  As previously blogged HERE, appellate practitioners breathed a sigh of relief when Justice Ervin used a footnote in CITY OF ASHEVILLE (footnote 11, to be specific) to correct the COA’s misinterpretation of an appellate rule.  Or a footnote might be used to signal an issue that the appellate court might wish to continue exploring in upcoming cases.  The list could go on.

Will the increase of footnote usage by the Court entice practitioners to follow suit in their briefs? In the days of page limitations on COA briefs, excessive single-spaced footnotes were sometimes (mis)used to cram more words onto each page.  That technique has been obviated by the adoption of word limits for appellate briefs but practitioners may still feel the urge to mirror patterns established and embraced by the appellate judiciary.

So, are footnotes in briefs a good thing? Sometimes they are unavoidable, as when the parties explain how citations to the record are being handled.  I have also seen them used effectively to bat aside an opponent’s red herring without interrupting the flow of argument in the body of an appellate brief.  Nevertheless, footnotes in a brief distract, especially when overused.  Look what happens here, starting on page 32.

What think ye, practitioners?

–Bob Edmunds