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

by Carolyn Elefant on March 14, 2010 · 0 comments

in Big Law/Small Law, Client Relations, Legal Research and Writing

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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 just how smart the brief’s authors are, 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 & Milavetz v. US, Scalia took his colleagues to task for a vanity footnote of their own regarding the legislative history of the Bankruptcy Abuse Prevention 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.

Note:  In response to the reader comment below, of course I read Millavitz and I’m familiar with the problems you cite.  My point here wasn’t to get into the merits, but simply discuss a piece of dicta to highlight a problem when solos litigate against large firms in any practice area.

But since you raised a substantive point, here are my thoughts.  The way I see it, the BAPCPA provisions that classify attorneys as debt relief agencies and impose restrictions on their ability to counsel clients (which was at the crux of this case) are clear and in the absence of ambiguity, reference to legislative history is not required.  In fact, here, the reference to the legislative history simply amplified the point that Congress regarded bankruptcy attorneys as scoundrels and enacted BAPCPA in response.  Do you really want that as part of Supreme Court precedent?

I agree, completely that BAPCPA makes life difficult for solo and small firm lawyers and their clients.  But if that’s the case, Congress needs to change the law, not the Court. Given that the decision was unanimous, it seems that the Court agreed that the law was clear as well.

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