COMMENTS OF CLEVELAND THORNTON, ATTORNEY AT LAW, IN RESPONSE TO THE NOTICE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES PUBLISHED AT 62 FEDERAL REGISTER 8037 (FEB 21, 1997) (Filed via email: citation@ao.uscourts.gov) NOTICE: I respectfully request the right to be heard at the public hearing on 3 April 1997. Paragraph 1. By notice dated 12 February 1997 and published in the Federal Register on 21 February 1997 ( 62 Fed. Reg. 8037 (Feb 21, 1997)) (http://www.abanet.org/citation/notice.html) the Judicial Conference of the United States seeks comments on the report and resolution of the Special Committee on Citations of the American Bar Association (ABA). See (http://www.intermarket.com/ecl/fin-cite.htm) for the report and (http://www.abanet.org/citation/) for the resolution. The report and resolution were approved by the ABA in August 1996. It urges state and federal courts to adopt a citation to case reports that are effective both for electronic and print media, that the court use a distinctive sequential decision number, that paragraphs of opinions be numbered, that this citation be part of the opinion when it is first published, and that pinpoint cites be made to the paragraph number of the uniform citation. Specifically, the Judicial Conference seeks comments on (1) whether federal courts should adopt the form of official citation for court decisions recommended by the ABA resolution and (2) the cost and benefits of such a decision would have on the courts, the bar, and the public. Paragraph 2. My name is Cleveland Thornton. I have been practicing law for over 25 years. I am a member of the bars of the State of Alabama, the District of Columbia, and the Commonwealth of Virginia. I have filed numerous memoranda and briefs throughout my career both for private clients and for the government of the United States. Many of the cases I have participated in have been reported in the West Reporter System. Paragraph 3. WHETHER THE FEDERAL COURTS SHOULD ADOPT THE FORM OF OFFICIAL CITATION FOR COURT DECISIONS RECOMMENDED BY THE ABA RESOLUTION. Paragraph 4. I support the ABA proposal and urge the Judicial Conference to adopt and implement the proposal for all federal courts as soon as possible. For the reasons set out below, I believe that the judges, court personnel, the bar, and the public will greatly benefit from the adoption of the ABA proposal with no additional costs to federal courts and no additional burden on their personnel. Paragraph 5. The report of the ABA special committee, which was itself subject to extensive public comment, addresses the issues raised by the Judicial Conference as well as other issues. Reference is made to that report and I adopt the reasons in that report as part of these comments. Paragraph 6. The need for the uniform citation is clear. As matters stand today, for federal opinions (and many state opinions) there is only one available source that can be cited to a court; West Publishing Company. It is true that Lexis-Nexis publishes federal cases online that contain pinpoint cites (or "Star Pagination") by referencing the page number of the paper report of the West Reporter. However, West, which claims a copyright to the ordering of the opinions so that the page numbers of the reports are copyrighted, has not licensed its page number system widely and has vigorously defended its claimed copyright in a number of suits. See James H. Wyman, Freeing the Law: Case Reporter Copyright and the Universal Citation System, 24 Fla. St. U. L Rev. 217 (1996) (http://law.fsu.edu/lawreview/frames/241/wymafram.html) Paragraph 7. The result of this copyright claim, the litigation, and the many local rules, practices, and custom is that a single company has a virtual monopoly on "proper" citations of opinions of federal judges who craft these opinions at the expense of the taxpayer. It is true that one may find federal cases in other publications, but a practicing attorney before a federal or state court must cite the federal reporter, including the internal page numbers, in order to properly cite cases in a brief or memorandum. See, The Bluebook, A Uniform System of Citation, (15th Ed) at 165-167 for the proper citation of federal material. All the proper citations for the U.S. District Courts and the U.S. Court of Appeals are to publications owned by West Publishing (e.g. Federal Supplement, Federal Rules Decisions, Bankruptcy Reporter, and Federal Reporter). See also Peter W. Martin, Basic Legal Citation, (1995-96 ed) (http://www2.law.cornell.edu/cgi- bin/foliocgi.exe/citation?) The citation to a U.S. Supreme Court opinion, on the other hand, is to the United States Reports, which is a government publication. Paragraph 8. Of course, there are other companies that publish federal opinions both on-line, on CD-ROM and on paper. But without the ability to publish the internal page numbering of West, West products have to be accessed, at great expense, to produce a citation that courts will accept. Not only must West products be accessed (or the few products licensed by West) but the practice lowers the value of other publications and inhibits the development of innovative and less costly ways of accessing basic legal material. Paragraph 9. For example, a company named Versuslaw recently began offering a service to the public that provides access to case law material. (http://www.versuslaw.com) The service is on the Web. The prices are considerably less than the main rivals, Westlaw and Lexis-Nexis. Versuslaw allows unlimited access to its product for under $600.00 per year. Westlaw database costs about $4.75 per minute. Lexis-Nexis is similarly priced. Of course, the amount of court opinions on both Westlaw and Lexis-Nexis is greater than on Versuslaw, which in many cases only goes back to about 1950. They also provide substantially more legal material than Versuslaw, they use a dedicated network system rather than the net, and they provide free search help by telephone and free training. Nonetheless, much of difference in cost is the result of a monopoly granted by the courts to West Publishing because of the requirement of citation to West products, and not the quality and amount of services provided. Paragraph 10. Versuslaw efforts, and other companies that are sure to follow (Lois Law is another example -- http://www.pita.com/), demonstrate the benefits that using computers can bring to the law and to the public. Versuslaw uses generally available technology to provide its service at very low prices. Yet, without a uniform citation system the Versuslaw system and others will not fully realize their potential, and prices to lawyers, and ultimately to the public, will be artificially high. Paragraph 11. There is movement to adopt a uniform citation system as the preferred usage where courts adopt the uniform citation. The 16th Edition of "The Bluebook, A Uniform System of Citation" (Bluebook) allows the citation to a URL on the Internet as a proper citation. (Bluebook Rule 17.3.3, Page 124, 16th Ed.) The Bluebook also allows citation to a medium neutral citation as the preferred citation, if it exists. (Bluebook, Page 62, 16th Edition) The medium neutral citation is consistent with the ABA citation proposal: it allows citations to the paragraph and the sequential case number. The rule states: If a decision is available as an official public domain citation (also referred to as medium neutral citation), that citation should be provided instead. A parallel citation to the regional reporter may be provided as well. When citing a decision available in public domain format, provide the case name, the year of the decision, the name of the court issuing the decision, and the sequential number of the decision. When referencing specific material within the decision, a pinpoint citation should be made to the paragraph number at which the material appears in the public domain citation. (Bluebook, Page 62, 16th Edition) Paragraph 12. The Bluebook gives, as an example, Stevens v. State, 1996 S.D. 1, paragraph 217. Versuslaw follows generally the uniform citation recommended by the ABA and the Bluebook in that Versuslaw numbers the paragraphs and numbers the opinions in sequential order. Until the uniform citation is approved by courts, however, a citation to Versuslaw could be Smith v. Jones, 1995 5th Cir 15 (http://www.versuslaw.com). See, "'Net Gain' Navigating the Web for Lawyers; Legal Research: Surfing with the Big Dogs", The Recorder 1996 (http://www.versuslaw.com/versuslaw/information/netgain.html) Paragraph 13. Following the new Bluebook citation form, the recent case involving the NBA and Motorola would be cited as "National Basketball Association v. Motorola, Inc., 1997.C02.48 (http://www.versuslaw.com)." A pinpoint cite would include the paragraph number, which Versuslaw supplies. Courts, which generally expect to see citation to the paper publications, might find such legal citation disconcerting, even if authorized by the Bluebook. Moreover, West and Lexis-Nexis have no incentive to provide a uniform citation unless the courts put these citations on the opinions when they were first published. See, Professor Peter W. Martin, in his Internet publication "Basic Legal Citation, (1995-96 ed)" (http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/citation?). However, the paragraph numbering and opinion numbering, if done by each publisher, would likely be inconsistent. In any event, each citation would be vendor-dependent. Thus, it would be possible to follow the Bluebook but not have a consistent citation method so that a judge could not find the opinion cited properly by a lawyer following the Bluebook if the lawyer and judge used different publishers. The ABA proposal solves this potential problem by making all citations consistent and uniform. Paragraph 14. Professor Peter W. Martin, in his Internet publication "Basic Legal Citation, (1995-96 ed)" (http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/citation?) makes reference to the need for a uniform citation such as proposed by the ABA and the confusing result if one is not adopted. Under the heading "The Future: How Technology Is Changing Citation" Professor Martin says: The current version of The Bluebook barely acknowledges the legal research revolution now well underway. Within recent years, online and disk-based law collections have become primary research tools for many lawyers and judges. Simultaneously, the number of alternate sources of individual decisions, regulations, and statutes has exploded. In many jurisdictions, law practice is now being carried out with at least a half dozen competing versions of appellate decisions including print, online, and CD-ROM. Because of these changes, there has been growing pressure on those ultimately responsible for citation norms, namely the courts, to establish new rules that no longer presuppose that some one publisher's print volume (created over a year after a decision is handed down) is the key reference. Several jurisdictions have responded; many more are sure to follow. Paragraph 15. Another potential problem of failing to adopt the ABA proposal is the increasing tendency of public information to be controlled by private parties. The issue has been generally seen as a threat due to efforts of several parties, including West, to seek protection for data, including public data, that a publisher gathers and publishes. These efforts have included proposals in Congress and more recently by a proposed treaty concerning intellectual property considered at a conference in Geneva this past December. See "Public Data or Private Data?" "The Washington Post", November 3, 1996 Page C 6.; See also "Crises Over Copyright", Margie Wylie, CNET, December 13, 1996 (http://www.news.com/SpecialFeatures/0,5,6201,00.html) Because of West's claims of copyright to compilation of public court opinions and the requirement by courts that West and West- licensed publications are the only authorized source for citation for these federal court opinions, the specter of private ownership of taxpayer-funded public information is palpable. The ABA recommendations solve this problem and allow West and other publishers the ability to add value to public information and compete in the market place. It also removes the troubling appearance of favoritism the present system promotes. See "West Publishing and The Courts", a collection of articles in the Minneapolis Star Tribune (1996)(http://www.startribune.com/westpub/) Paragraph 16. West puts the following notice in each volume of its Reporters: All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Except for the protection of the fair use provision of the Copyright Act, 17 U.S.C. 107, it seems that normal uses that lawyers, judges, and the public make of these opinions could violate West's claimed copyright. For example, photocopying an opinion to give to a court as an attachment to a brief, as many trial courts require, or quoting substantial portions of a case together with putting the pinpoint cite on the quoted material in a brief, or faxing a case to a colleague, raises serious questions whether West's purported copyright has been violated. It is true that West also says that: Copyright is not claimed as to any part of the original work prepared by a United States Government officer or employees as part of that person's official duties. The problem is that West has claimed that its copyright includes more than just the Key Numbers or just the organization of its reporters so that page numbers are protected, but also include certain other editorial work done on the opinions. However, West will not define which is its claimed copyrighted work and which is that of a government employee. Thus, the problems remain of quoting extensively, photocopying, and faxing cases from a West Reporter as described above, and both the courts and the public proceed at their own risks. The risk may be small but only because West would decide not to prosecute a copyright violation of a judge or practicing attorney. But West controls the outcome of the use of this essentially public information and there is a likelihood of violating West's copyright. The ABA proposal removes any threat of violating the copyright law. Paragraph 17. Another argument sometimes made against adoption of a uniform citation is that it is not needed because the market place has chosen West reporters. This argument begs the question, however, because as things now stand there is no choice because of court rules on citations. Where the assertion can be tested, the assertion turns out to be factually untrue. For example, there is a choice with the U.S. Supreme Court citations. Citations are always made just to the United States Reports, not the West publication, as the Bluebook requires. Adoption of the ABA proposal would allow any publisher to enter the market place so an actual choice can be made. Certainly, West would have the opportunity to compete and would have an overwhelming advantage in the marketplace even with the adoption of the uniform citation. So long as the requirement exists to cite to West publications, there is no free-market and no market choice could been made. Paragraph 18. WHAT ARE THE COSTS AND BENEFITS SUCH A DECISION (TO ADOPT THE ABA PROPOSAL) WOULD HAVE ON THE COURTS, THE BAR, AND THE PUBLIC. Paragraph 19. The available evidence makes clear that there is little or no cost to the courts in adopting a uniform citation system. The uniform citation system requires numbered paragraphs, that opinions be sequentially, and that this be done when the opinion is published by the court. Paragraph 20. Paragraph numbering costs should not be an issue. Indeed, Rule 10(b) of the Federal Rules of Civil Procedure has required the bar to number paragraphs in pleadings since the 1930's when manual typewriters were used. The rule made no exceptions based on how rich the client was or how much of a burden it put on the practicing bar. Rule 10(b) states, in part: All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Paragraph 21. Today, all opinions crafted by federal judges are done on wordprocessors, usually using either WordPerfect or Microsoft Word. These and virtually all other wordprocessors automatically number paragraphs on command, as was done in drafting these comments. Another option is to create a set of macros that number the paragraphs after the opinion is drafted and also assign a sequential number for the opinion. This is being tested at the clerk's office of the Virginia Court of Appeals. Creating a program or a set of macros to number paragraphs and number cases in sequential order is a trivial matter in terms of cost and time. Paragraph 22. Even if the paragraph numbers had to be manually placed before each paragraph, however, the additional effort on the part of a typist is minimal and the cost non- existent. Paragraph 23. The ABA report points out, in paragraphs 47 through 50, that there is no evidence that paragraph numbering poses a problem for court personnel. Canadian courts, which have used paragraph numbering since 1991, report that it takes only a few hours of training for the first secretary to learn to use a macro to place paragraph numbers in opinions and less than an hour to train each of the other secretaries. (ABA Report, supra., paragraph 47) Through the use of macros, or the creation of style sheets, paragraph numbering should be even less of a training burden than indicated by the Canadian experience of six years ago. Paragraph 24. Likewise, there should be no trouble putting the cases in sequential order. Some court personnel believe that the main problem with the ABA proposal is the integrity of the opinions. Many believe that the West reporter system is somehow the "official" reporter system for federal cases. This is not true. Moreover, on examination there is little merit to the argument that use of a uniform citation reduces the integrity of the opinion. First, the opinion that is referenced with a uniform citation is the one issued by the court, not issued by West. West does perform editorial work on opinions that West publishes, and no doubt this work improves the opinion. But West's editorial work does not make the opinion "official" nor more reliable than the opinion signed and issued by the court itself. Paragraph 25. Moreover, Lexis-Nexis also publishes opinions that have no editorial work done on them by West. Yet, the West reporter page numbers are added to the opinions by Lexis-Nexus by license from West. Thus, a lawyer can use Lexis-Nexis opinions that have no editorial changes made by West Publishing but cited as if they came from the West Reporter. How would a court know that what was really being quoted is West or the opinion issued by the Court that is published by Lexis-Nexis? It cannot. Thus, integrity is not an issue with the uniform citation proposal from the ABA. Paragraph 26. In fact, it is the monopoly on the page numbering required by custom, usage, and court rule that is the point and no integrity is added to the opinion by West or any other publisher. An opinion can have no more integrity or authority than what the court itself gives it. Paragraph 27. Some court personnel believe that by having a uniform citation number -- a generic citation system -- their workload would be increased. Specifically, some believe that if the clerk gets a call about a case and is only given the uniform citation, that they will have to create and use a conversion table to know that the uniform citation is really referring to a specific docket number. But it is difficult to see how this argument can be sustained. There is nothing in the West citation to a federal reporter that references a docket number. If someone calls with just the West citation, then one must still determine the docket number. Perhaps the court personnel feel that now all they have to do is go to the West reporter with the West citation and then get the docket number of the case. That is true. But that will be the same procedure for the uniform citation, as well. There will be a number of publishers, including West, that will publish the opinions using the uniform citation that will include the docket number. Instead of one publication, the court personnel will have several publications to chose from to obtain the docket number. If a member of the public calls with only the docket number or only the name of the parties the situation for the clerk would be the same with either the uniform citation or the West reporter citation. These scenarios, however, are most unlikely to occur and ought not prevent the adoption of the ABA proposal Paragraph 28. What will likely happen is that the clerks will have even less work to do in this regard. Because a probable solution to putting the cases in sequential order will be a computer program or macro on a wordprocessor, it is simple enough to have the data base include the docket number (or any other information a clerk wanted to include), something that would apt to be included anyway. As indicated above, such a system is being tested in the clerk's office of the Virginia Court of Appeals (Paragraph 22, supra.) Thus, the clerks will have an electronic database with both the uniform citation and the docket number that can be searched either by citation or docket number. That does not now exist, so the court personnel would actually be in a better position in this regard than they are now. Paragraph 29. The creation of such a system is truly a trivial matter in terms of time and expense. More importantly, by putting the paragraph numbers in the opinions and numbering them sequentially the courts and the court personnel would assume their rightful responsibility for the integrity of their own work product that is paid for with public funds and not abdicate this responsibility to a private for-profit publisher. Paragraph 30. Other courts apparently do not find it difficult or prohibitively expensive to number paragraphs or to put the opinions in sequential order. In addition to the state and federal courts in the US and Canadian referenced in the ABA report, I am aware of other courts that number paragraphs in their opinions. John Cutts, the reporter of decisions for the US Court of Military Appeals, is putting paragraph numbers in the opinions of that court that are published by West Publishing Company. In oral conversations with Mr. Cutts, I am aware that his court uses some very old word processing software and equipment that does not automatically number paragraphs. Yet he has begun numbering paragraphs in his opinions in anticipation of a uniform citation convention and to determine how difficult it would be. He reports that it is not difficult and adding paragraph numbers creates virtually no additional work in preparing the opinions. Indeed, Mr. Cutts cites to paragraph numbers of cases published before he used paragraph numbering, going back and re-numbering in the old cases. For example, U.S. v. Gibson, 43 M.J. 345 (1995). These opinions are published by West with the paragraphs numbers in addition to the value added work that West does. The court has never numbered the opinions sequentially. Paragraph 31. The Six Circuit also numbers the paragraphs in its opinions and publishes them on the Web. This includes numbering paragraphs and putting the opinions in sequential order. (http://www.law.emory.edu/6circuit/index.html) Paragraph 32. The State of Maine has adopted the ABA uniform citation system and has placed its opinions on the Web since 1 January 1997. (http://www.courts.state.me.us/mescopin.home.html) Paragraph 33. The State Bar of South Dakota has put selected opinions of the US District Court of SD on the web and uses the uniform citation system proposed. (http://www.sdbar.org/opinions/dsdindex.htm) Paragraph 34. Recently, Congress has expressed its support for making court opinions and other court documents available to the public electronically and over the Internet. Indeed, the 1997 appropriations bill H.R. 3610, signed by the President on 30 September 1996 provides funding for this purpose. (See The Judiciary Appropriations Act, 1997. Pub. L. No. 104-208, 110 Stat. 3001, 3009-3046 (1996)). The House Report on the bill that was consolidated with H.R. 3610 and became P.L. 104-208 says: The Committee supports the ongoing efforts of the Judiciary to improve and expand information made available in electronic form to the public. Accordingly, the Committee expects the Judiciary to utilize available balances derived from electronic public access fees in the Judiciary Automation Fund to make information and services more accessible to the public through improvements to enhance the availability of electronic information. The overall quality of service to the public will be improved with the availability of enhancements such as electronic case documents, electronic filings, enhanced use of the Internet, and electronic bankruptcy noticing. H.R. Rep. No. 104-676 104th Cong., 2nd Sess. (1996) (http://rs9.loc.gov/cgi- bin/cpquery/1?cp104:./temp/~cp104jQCA:e291187:) Paragraph 35. The Senate Report has a similar provision. Section 305 contains language extending for 1 year the authorization for the judiciary automation fund in order to continue the orderly and effective administration of the judiciary's automation programs to make information and services more accessible to the public through enhancing the availability of electronic information. S. Rep. No. 104-353, 104th Cong., 2nd Sess. (1996) (http://thomas.loc.gov/cgi- bin/cpquery/1?cp104:./temp/~cp104Bdzt:e301988:) Paragraph 36. I do not maintain that the statute or the language in the reports require adoption of the ABA proposal. However, it is clear that Congress expects the courts, not a private company, to make its opinions public. It would be truly anomalous if the information that is made public cannot be cited back to the courts unless the citation is to a private company. Such a situation would violate the clear import of Congress's intention when made these funding appropriations. Indeed, the argument by some that somehow the integrity of court opinions is lessened unless it is obtained from the West Reporter system stretches the bounds of reason when the result is that what the court itself publishes has less "integrity" than what a private publisher publishes. Paragraph 37. Assuming that complying with the ABA recommendation would place some burden on the courts it is clear from these two congressional reports that Congress has made funding available by allowing use of the Judiciary Automation Fund to accomplish this and expects the courts to implement a rational and effective policy for making its opinions and other documents available to the public. The Judiciary Automation Fund has sufficient funds to create any computer program or procedure for the courts to implement the ABA proposal. Paragraph 38. Immediate citation reference is another benefit to both the bench and bar by the use of the uniform citation. The United States Supreme Court provides a good example of the problem. When the Supreme Court issues an opinions, it cites only to the United States Reports. The reports, however, take years before they are published so that the page number is known. Indeed, many opinions cite to cases decided earlier by the Court as U.S. __. The private publishers add citation to their own publications, but even these take several weeks before the printed editions are published and the page numbers established. The uniform citation solves this problem by effectively having the citation on the opinion when it is issued by the court. There would be no more slip opinion citations or citations only to a specified publication, such as United States Law Week. The citation reference would be immediately available to anyone. Paragraph 39. The ABA proposal, if adopted, would mean that pinpoint citations would be more precise. A distinct disadvantage of using page pinpoint citations, in addition to being useful only for paper publications, is that it is not a very precise reference. There is a significant amount of material on a reporter page and finding the quoted material is more difficult than finding the material in a paragraph reference. A paragraph number is a more precise reference than a page number. Paragraph 40. In the final analysis, it is for the courts to control its opinions, including their integrity. These opinions are created at taxpayer expense and are a fundamental source of law in the United States. The private sector is well equipped to compete in determining which format, of several formats, case law will be provided to the bench, bar, and the public. But competition can support this value added work by the private sector only if there is a level playing field for citation to these legal opinions. Otherwise, there will be confusion on citation formatting, a lagging in development of innovative use of computer systems for the legal community and the public, a de facto monopoly granted by the federal court system to one publisher based on paper publishing resulting in significant costs to the bench, bar and the public, and the creation of a high barrier for publishers who wish to use electronic publishing to publish case law. These results are not in the public interest. For the foregoing reasons, the Judicial Conference should implement the ABA proposal for all federal courts. Respectfully submitted: Cleveland Thornton Attorney at Law 15 2nd Street, NE Washington, DC 20002-7301 Tel: 202-543-9673 Fax: 202-543-3482 thornton@legalbits.com Home Page http://www.legalbits.com/pub/cthornto/home.html NOTE: Because this is submitted by email certain citation conventions such as underline, bold, etc, could not be used.