Solo Practice

Thank You, Justice Scalia for Remembering Who Pays (the Client!) for the Vanity Footnote

By Carolyn Elefant

If you're a solo or small firm lawyer who litigates against biglaw, you're probably familiar with the vanity footnote -- that smug, yet entirely superfluous annotation to legislative history, obscure law review article, treatise or string citation included in many large firm briefs.  Though intended to corroborate a case cited in the text or flaunt conscientiousness research, the vanity footnote gilds the lily, mucking up an elegantly persuasive argument with TMI.  Even worse, vanity footnotes compel a response, and thus force lawyers to engage in additional and unnecessary research on the client's dime.

But now, those of us who represent clients on tight budgets have an advocate on our side in the form of Justice Scalia.  Concurring with the majority in Milavitz, Gallop & Millavetz v. US, Scalia took his colleagues to task for a vanity footnote of their own regarding the legislative history of the Bankruptcy Abuse and Consumer Protection Act of 2005.  From Scalia's  concurrence:

The Court acknowledges that nothing can be gained by this superfluous citation (it admits the footnote is 'unnecessary in light of the statute's unambiguous language,' ante, at 6, n. 3).  But much can be lost.  Our cases have said that legislative history is irrelevant when the statutory text is clear....The footnote advises conscientious attorneys that this is not true, and that they must spend time and their clients' treasure combing the annals of legislative history in all cases:  To buttress their case where the statutory text is unambiguously in their favor; and to attack an unambiguous text that is against them.  If legislative history is relevant to confirm that a clear text means what it says, it is presumably relevant to show that an apparently clear text does not mean what it seems to say.  Even for those who believe in the legal fiction that committee reports reflect congressional intent, footnote 3 is a bridge too far.

Though in this economy, many clients are struggling with legal fees, it's solos' and small firms' consumer and budget oriented clients are are disproportionately burdened by the costs of responding to vanity footnotes.  Premium services like WestlawNext are ideally suited for tracking down the kind of secondary information contained in vanity footnotes, but as I've noted along with my colleague Lisa Solomon, WestlawNext doesn't come cheap for solo and small firms. 

So from solos everywhere on behalf of our clients --  thank you, Justice Scalia for remembering that when lawyers or judges make easy law hard, we make things harder for our clients.

Full post as published by My Shingle.com on March 14, 2010 (boomark / email).