AMERICAN BAR ASSOCIATION POSITION STATEMENT TO THE JUDICIAL CONFERENCE OF THE UNITED STATES ON CITATION CONVENTIONS FOR THE FEDERAL COURT SYSTEM On August 7, 1996, the American Bar Association House of Delegates overwhelmingly adopted a recommendation that all jurisdictions adopt a universal system of citation which was equally effective for printed case reports and for case reports electronically published on computer disks or network services. This recommendation and the accompanying report were the product of a year-long study undertaken by the ABA Special Committee on Citation Issues, which had been established to take up the issue of whether a new system of citation was needed to accommodate the ever-increasing use of computers in legal research and in the publication of judicial decisions. In formulating its recommendation, the ABA Special Committee on Citation Issues emphasized three fundamental policy objectives. /1/ The first objective was to recommend a system of citation which is both efficient and effective for all segments of the legal profession. The second objective was to ensure the new system would be medium neutral. The third objective was to achieve a workable balance between the need for uniformity and the need for flexibility. The universal system of citation which was devised to achieve these goals is especially suitable to single court jurisdictions; but it can be made equally suitable to multiple court jurisdictions, such as the federal court system, by breaking down the larger jurisdiction into its natural subparts. How the recommended universal form of citation would work for the federal courts is shown by the following examples: o Supreme Court of the United States: Smith v. Jones, 1998 US 15, 134 S. Ct. 342. o United States Court of Appeals for the Fourth Circuit: Smith v. Jones, 1998 4 Cir 22, 115 F.3d 567. o United States District Court for the District of Maryland: Smith v. Jones, 1998 DMD 17, 963 F. Supp. 835. o United States District Court for the Southern District of New York: Smith v. Jones, 1998 SDNY 15, 962 F. Supp. 214. o With a pinpoint citation: Smith v. Jones, 1998 SDNY 15, paragraph 26, 962 F. Supp. 214. o For a federal court patent case: Smith v. Jones, 1998 EDVA 15, 27 USPQ2d 456. o In the Tax Court: Smith v. Commissioner, 1998 TC 3. Although the ABA recommendation has gained widespread acceptance, it is not without its critics. Among those most familiar with the citation reform issues the central question is whether the citation convention should require a parallel citation to a print source, such as West's National Reporter System. Some would answer that question affirmatively. Others would argue that parallel citation to any source should be forbidden. There was also a sizable group of practitioners and judges alike who would leave things well enough alone. Their argument was, "It's not broke; so why are you trying to fix it?" This position statement will analyze these issues as well as other questions critical to the successful implementation of a universal system of citation. PARAGRAPH NUMBERING. Central to the effectiveness of the universal citator is the need to number the paragraphs of each decision before it is released by the court. The internal paragraph numbers would then become a part of the official text of the opinion and follow it wherever it was published. In this way, the same internal marker would lead the reader to the desired location whether the opinion is found in a printed slip sheet published by the court, in the bound volume of a printed reporter, or in the computer data base of an on line research service. Internal paragraph numbers would eliminate the need to use internal page references in parallel citations and would be available from the moment the decision was released. PARALLEL CITATIONS. Until electronic publication of case reports becomes generally available to and routinely relied upon by the courts and lawyers in the jurisdiction, each jurisdiction should strongly encourage parallel citation to print case reports. When a cited authority is not available in those printed case reports, the jurisdiction should require counsel to provide printed copies of the opinion cited to opposing counsel and to the court. The parallel citation should only be to the first page of the reported opinion. As noted above, parallel pinpoint citations serve no function when paragraph numbers are available, and they should not be used. The ABA favors parallel citation to any print source "commonly used in the jurisdiction." The ABA rejected the notion that parallel citations be required, but also believed that forbidding parallel citation entirely would severely undermine the goal of medium neutrality. The ABA recommendation emphasizes its policy orientation toward ensuring equal ease of access to the law for lawyers who may never want to turn on a computer, much less use one in the practice of law. DOCKET NUMBERS. In its report, the ABA Special Committee on Citation Issues rejected the use of docket numbers as the universal citator. Docket numbers offer a superficial attraction as a means of identifying the decision to be cited, because well-established techniques are already in place for the assignment of a docket number to a case. In contrast, new systems will have to be developed and implemented by the courts in order to assign a new, unique identifier to each decision. Nonetheless, their superficial attraction belies the many disadvantages of docket numbers. Docket numbers are assigned sequentially at the time the case is filed. Multiple decisions in a single case would have the same docket number. There would be no sequential numbering of decisions as they are issued, leaving large gaps in the numbering scheme, jumbling the relationship between the number and sequence of decision, and making missing and inverted numbers that much more difficult to spot, features which will greatly increase the likelihood that mistakes will be made in administering and using the system. Frequently docket numbers have extra little twists, built in to suit the needs of a specific court, that compromise their use for citation. For example, many courts include a judge's initial in the docket number; so, if the case is reassigned, the docket number changes. Most telling, though, is the fact that docket numbers are not medium neutral. If their other defects could be overcome with a superimposed numbering system which would make the modified docket number unique to each decision, docket numbering would still only work in the electronic medium. Docket numbers do not work well at all when it comes time to print the decisions in bound volumes. THE "PUBLICATION" OF DECISIONS. Modern technology has forced a redefinition of when a decision is published. No longer can it be said that a judicial decision is truly "unpublished" after it has been made accessible to millions of readers over the Internet. The ABA endorsed convention therefore focuses on whether the decision is non-precedential or uncitable, rather than on whether it is "unpublished." Redefinition of when the point of publication occurs also forces a re-examination of the practice of the post-release editing of judicial opinions by judges and the publishers of the bound printed volume. Under the new convention, an opinion is "published" when it is first released to the public. If later revised, the modified opinion would require a new sequential number. (Example: Smith v. Jones, 1998 US 15, modified 1998 US 47.) DECENTRALIZATION AND THE ADMINISTRATIVE BURDEN. The American Bar Association determined that each jurisdiction should be given as much discretion as possible to administer the citation conventions in its own way. Under the ABA proposal, individual courts would be responsible for such things as deciding which of its judicial acts would be given a sequential number, administering the sequential numbering of those decisions, and administering the required internal paragraph numbering. In contrast to advocates of a centralized system of assigning sequential numbers, the ABA concluded that each court was in a better position to assign its own individual sequential numbers. Dialing 1-800-LAW-CITE to get a sequential number would put the entire federal court system at risk in the event of a technical malfunction and deprive each district of having its own decisions sequentially numbered. Here lies the crux of the competing tension between the need for uniformity and the need for flexibility. To keep the modern citation of cases from being a cacophony of fifty-one different citation conventions, uniformity is essential. On the other hand, central planning routinely fails because is unable to take into consideration the needs of those in the field who must make the central plan work. Thus it was that the ABA determined that the recommended system of citation was but a beginning point, to be later shaped to fit the individual needs of individual courts. Closely related to the issue of decentralization is the issue of administrative burden. Thus far, fears of increased administrative expense have been dispelled by the experience of those jurisdictions which have already implemented comparable citation systems. The ABA committee which studied the citation issues was advised that many Canadian courts, including the Supreme Court of Canada, have employed paragraph numbering since the beginning of 1995 with little increased burden. According to these reports, court personnel were trained in a matter of a few hours. The Canadian experience was replicated by the United States Court of Appeals for the Sixth Circuit. For over a year the Supreme Court of South Dakota has used a sequential case numbering system with little reported expense or disruption. /2/ CONCLUSION. The argument, "It's not broke; so why are you trying to fix it?" was considered but rejected by the American Bar Association. Modern technology permits fast, cheap legal research on the Internet. Volumes of case reports that once filled a room can now be carried on a compact disc in a lawyer's pocket. Private sector vendors are standing in line to compete with each other to provide reliable, inexpensive case reports. The vehicle that makes this all happen is a citation, unique to each decision, that is available from the moment the decision is issued and is the same regardless of whether the opinion is published in a book, a slip sheet, a compact disc or an on-line data base. Market forces will dictate what the law library of the Twenty- First Century will look like. The citation conventions recommended by the American Bar Association win give the market place the freedom and flexibility it needs to do its work. James E. Carbine Suite 2700 111 South Calvert Street Baltimore, Maryland 21202 410-385-5300 FAX-385-5201 jcarbine@trialaw.com