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From The Wayback Machine - Justice Clifford Eviscerates Footnotes (IN RE OPINION 662 OF THE ACPE - 133 N.J. 32 (1993))

From In re OPINION 662 OF the ADVISORY COMMITTEE ON PROFESSIONAL ETHICS.

Argued March 16, 1993.
Decided July 8, 1993.

CLIFFORD, J., concurring.


The Court's otherwise-impeccable opinion relegates to footnote status an important observation. Sounding an entirely appropriate note of caution, the Court expresses doubt about the proposition, floated by the Advisory Committee on Professional Ethics, that a government attorney's involvement in the drafting of an ordinance or statute or crime-prevention program will always disqualify that attorney from participating in a proceeding for the enforcement thereof. Ante at 29-30, 626 A.2d at 1088 & n. 2. I share the Court's doubt, but I deplore the use of a footnote to express it.

In fact, I deplore resort to footnotes not only in this case in particular but in judicial opinions generally. They distract. They cause the reader to drop the eyes; to absorb what is usually a monumental piece of irrelevancy or pseudo-scholarship but is sometimes-as here-a significant pronouncement that rightly belongs in the text; and then to return, without skipping a beat, to the point of departure on the upper part of the page. The whole irritating process points up the soundness of John Barrymore's observation that “[reading footnotes is] like having to run downstairs to answer the doorbell during the first night of the honeymoon,” quoted in Norrie Epstein, The Friendly Shakespeare 75 (1992).

And so the footnote in the Court's opinion represents yet another setback in my woefully-ineffectual campaign to abolish footnotes from our opinions. Of course, an exception to that hard-and-fast rule crops up occasionally, as illustrated by footnote 1 of Judge Kozinski's recent opinion for the Ninth Circuit in United States v. Snider, 976 F.2d 1249, 1250 (1992), which reads as follows:

1 We do not (except in the caption) follow the appellant's counsel's interesting practice of writing the names of the people involved in CAPITAL LETTERS. Neither do we follow the appellee's counsel's practice of writing appellant's name in BOLD-FACED CAPITAL LETTERS. Nor do we intend to write all numbers both as text and numerals, as in “eleven (11) loose teeth, two (2) of which were shattered[;] [m]oreover, her jaw was broken in three (3) places.” Appellee's Brief at 7. Finally, we will also not

“set off important text”

by putting it on

“separate lines”

and enclosing it in

“quotation marks.”

See id. at 10. While we realize counsel had only our welfare in mind in engaging in these creative practices, we assure them that we would have paid no less attention to their briefs had they been more conventionally written.

Subject to the foregoing observations I join the Court's opinion.

In re Opinion 662 of Advisory Committee on Professional Ethics 133 N.J. 22, 32-33 (1993).