Subject: Vendor Neutral Citations Date: Fri, 14 Mar 1997 18:52:46 EST From: bbayer@juno.com (Barry J Bayer) To: citation@teo.uscourts.gov March 14, 1997 Appellate Court and Circuit Administration Division ATTN: ABA Citation Resolution Suite 4-512 Administrative Office of the U.S. Courts Washington, D.C. 20544. Via Email: citation@ao.uscourts.gov Re: Vendor Neutral Citations Greetings: Please take this e-mail as my comments to the question of whether the Federal Courts should adopt something similar to that system of Vendor Neutral Citations suggested by the American Bar Association. I make these comments based both on my experience through 28 years of practice, and as an author of a syndicated column specializing in computer based and other high technology products for lawyers. The current system of vendor-based case citations has served us well for more than a century, but it does have acknowledged problems: 1. Many cases have at least two permanent citations and may have four or more temporary citations over its lifetime. A decision of the United States Supreme Court, for example, will have an initial docket number, a number on Westlaw, another on Lexis and perhaps a page citation in BNA's US Law Week. The same opinion will have permanent citations to the official reports as well as the West Supreme Court (SupCt) citation, and, unless it has been rendered moot because of the recent purchase of West by Thompson Publishing, the co-called Lawyer's Edition (L. Ed). The typical state court case will have five possible citations --- a docket number, an official reporter, a West reporter, WestLaw and Lexis. 2. West Group claims a copyright in the point in each decision, as reported in a West reporter, where the opinion moves from one page to the next. This makes it inconvenient for users who do not purchase opinions from West to follow jump citations for quotations, so that the reader of a brief may be directed to the specific point in the opinion from which a quotation is taken or where the point of law in question is discussed. These problems may be easily solved by following the two major points in the ABA Resolution: 1. Each decision should have a permanent citation, assigned by the issuing Court, at the time the decision is issued. 2. Each decision should be published by the issuing Court with numbered paragraphs. The first recommendation solves the multiple citation problem. Although any lawyer might be permitted to use as many parallel citations to the same case as she wished, the official citation would be mandatory. /1/ And jump cites would no longer be made to specific pages, but, instead, to the official number of the paragraph in which the cited information is found. Obviously, a lawyer could parallel cite to West pages or anyone else's pages, but citation to paragraph numbers would be mandatory. Thus the citation to the 71st Paragraph of the 15th decision issued by the United States Supreme Court in 1997 would be: 1997 USSCT 15 @ 71. /2/ This citation format is easy to understand, unambiguous, and useful to any person with a copy of the case as published by any vendor in any medium. This citation differs slightly from the ABA recommendation which does not use the @ symbol to set off the paragraph number and which calls for a parallel citation in addition, but the idea is the same. This assumes, of course, that all vendors in whatever medium would publish the official citation and paragraph numbers, but I have little doubt that this assumption would prove correct. In addition to being an insult to the issuing court, failure of one publisher to include the official citation and official paragraph numbers would be a detriment to sales. In fact, the system described by the American Bar Association is so easy to use and understand, and so inexpensive to implement --- we assume that a simple word processor auto-number macro would number decision paragraphs automatically --- that we cannot figure out how anyone but a publisher with a vested monetary interest in the current hodge podge could possible be against it. Yet some are. In 1995, well before the growth of cases easily available on the Internet, in a column that appeared in Law Office Computing magazine, I wrote that: "I'd never heard of [the Association of Reporters of Judicial Decisions] but some skulking around disclosed an August 5, 1994 "Policy Statement" that notes: "The goal of each member is to provide easy public access to opinions at reasonable cost." "Well, that's sounds good. I'm all in favor of access to opinions at reasonable cost. "But the Association continues "The members believe that, as to those jurisdictions that publish their opinions in official reports, creation of a vendor- neutral form of electronic citation is unnecessary. There is no evidence that citation to the present official reports does not adequately serve the needs of all users. Pagination in those reports is now easily accessible and not copyrighted." "Electronic citation unnecessary? No evidence that the current system doesn't "adequately serve the needs of all users."? Now wait just a second. A couple of weeks ago I ordered a Lexis "CasePull" on Lexis Counsel Connect. (The cost is $1 as of this writing, but it will probably be at its $4 permanent cost by the time you get it into hand.) The only citation I had was 1994 WL something or other. "Sorry. Lexis no comprende." Or a case retrieved from the inexpensive, no frills Lawyers Legal Research system. Alas, the only citation was to the slip opinion. "Well I don't know where those guys are working, but I knew that the current system of citation doesn't serve my needs. So I called a key Committee member, and told him of my problems with his system. "Don't worry," he said. "If you want to cite that case in a brief, just put down the slip opinion number; the Judge will be able to find the case, and will fill in the reporter citation for you." He must have some really nice Judges where he practices law, but I somehow suspect that slip opinion citations for cases already in NE2d just wouldn't fly with the very nice judges in Chicago." I never did determine why public servants involved in the important job of presenting the decisions rendered by our Courts felt that the current system was adequate for our purposes. But I remain convinced today, as I was two years ago, that the Vendor Neutral Citation is an idea whose time has come, and that particularly with the substantial consolidation in the legal publishing industry upon purchase of West Publishing Company by the Thomson publishing interests, it is vital that we encourage competition in the field, and lower the bars to entry to ensure a free market. It is necessary for the courts to take control of its own work product, and not wait for some commercial publisher to dictate how that work product will be cited to future courts. /3/ The only substantial argument that I have heard against Vendor Neutral Citation is that it would be too expensive to re-cite, add paragraph numbering and republish almost 250 years of United States Jurisprudence. And, of course, that argument may be valid. It would cost much less, however, to re-cite, reformat and republish the last 10 years of case, being the cases most likely to be cited in briefs and opinions today. And if that be deemed too costly, it would cost nothing to begin the new citation system with the first cases published in 1997 or even 1998. While all of the benefits of such a prospective system might not be obvious in the limited number of years that I may have left at the Bar, I have no doubt that lawyers of the next millennium will look praise your foresight in adopting at least a prospective system, as they look upon the curious system of legal citation that we use today with the same combined reverence and amusement with which we view Deeds with wax impression seals, actions pleaded in assumpsit, and prayers for relief that demand that the plaintiff "go without day." I believe that vendor neutral citation is a requirement for the sort of country that we are and wish to remain. If we are to remain a democracy, a nation of law, that law must be available to the citizenry. A uniform system of vendor neutral citations could and should be implement in the federal courts at the earliest opportunity. We suspect that most state courts would follow. This can only have the result of making judicial opinions easier to find, and available at lower cost, making this portion of "the law" more easily accessible for all to read and ponder. Very Truly Yours, /s/ Barry D Bayer Attorney at Law Editor in Chief / Law Office Technology Review 2710 West 183rd Street P O Box 2577 Homewood, IL 60430 708-957-3322 (Voice) 708-957-3337 (Fax) bbayer@counsel.com FOOTNOTES /1/ It has been noted in other discussions that with page limitations on briefs so common, today, a required official citation will have the effect of eliminating parallel cites that do little but take up precious space. /2/ The USSCT designation is, of course, an example only, may not be the one ultimately chosen. We assume that the Judicial Conference, itself, would select the identifiers for all federal courts. USCCT-1 and USCCT-7 might identify decisions from the United States Court of Appeals for the First Circuit and for the Seventh Circuit, respectively. USDND-IL might identify the United States District Court for the Northern District of Illinois. /3/ The argument is sometimes made that West Group offers great assistance to the courts by correcting such things as grammar, spelling, citations, quotations and even occasionally revising a particularly awkward phrase --- all with the approval of the issuing Court, of course. And that if Vendor Neutral Citation were implement, opening opinion publishing to just anyone, West would have less incentive to supply its services in cleaning up such opinions. I assume that the Courts are as capable of copy reading and fact checking as West; to the extent that West is now supplying such functions, if they are, this add all the more reason that the Courts should take back control of judicial work product. END OF FOOTNOTES Barry D Bayer Law Office Technology Review P O Box 2577 - 2711 West 183rd Street Homewood, IL 60430 708-957-3322 (Voice) 708-957-3337 (Fax)