Subject: Citation system for court opinions in public domain 
   Date: Sun, 9 Mar 1997 22:23:45 -0500 (EST) 
   From: Overlandc@aol.com 
     To: citation@teo.uscourts.gov 
     CC: tkissner@carleton.edu 
 
     As a solo practitioner miles from the nearest library, and as 
one who cannot afford West's on-line or CD-ROM legal library, this is 
a subject I care about. I have been greatly frustrated by manual 
research in the days of high-technology. 

     The courts should adopt the citation form recommended by the 
ABA, and must make the opinions in the public domain accessible to 
the public. The opinions in the public domain must also include 
"unpublished" opinions as well. This system should be adopted by 
federal and state courts. 

     When examining the costs and benefits of adoption of this 
system, one must also look at the costs and limitations of the old 
system. Given West's monopoly (although it appears they may be losing 
some ground), there are two issues. First is the monopoly on use of 
citation form, and second is monopoly and limitation of access to the 
decisions. They are linked. 


     Monopoly of citation form is simple to remedy -- establish 
another system open to the public. The problems are obvious -- others 
cannot utilize records in the public domain without using West's 
system because there is no other way to cite the decisions. These 
others who want to publish or provide access are also the ones who 
could provide access to those of us who cannot afford West. 

     This raises the second issue. If the courts do adopt use of a 
citation system, it should also develop a complete legal library 
through which access with search capabilities is provided. Any 
citation system is worthless without access. 

     There is a decided bias in the current limitation of access. 
Those firms, government agencies, and insurance companies, the major 
repeat litigators, who can afford West access can retrieve decisions 
simply through their on-line or CD-ROM system. Those of us who do not 
have access must laboriously search the stacks to find what we think 
we're looking for, and may never find the cases that could make the 
difference in our argument. I have made a novel argument resulting in 
new law in Minnesota and the nation in motor carrier insurance. See 
Northland v. Benett, . To successfully argue this theory, I had to 
cite cases from other state and federal jurisdictions, and I was able 
to do this only because I had access to West through my employer. As 
a solo practitioner, I do not have access now, and would have a 
difficult time paying for access. 

     The cost to the courts is nil -- only an adjustment in the way 
that things are done. 

     The costs of change to the bar are large. Those well or 
adequately-heeled firms who have the advantage of use of West and 
their citations would lose this advantage. This also gives them a 
decided edge in the marketplace. They would have to compete with 
their "lesser" adversaries on a more equal footing. Those who object 
to this change in citation must be challenged about their resistance 
-- perhaps economics is the driving force. Too bad. 

     The costs to the public of change are nil. However, the costs to 
the public if the current system is great. First, the public, defined 
as Mr. & Mrs. Joe Six-pack, lose every time that they need legal 
help. They cannot afford large firm services, and settle for whatever 
they can afford, and likely those attorneys cannot afford West. If 
the attorneys they can afford have access to cases, they will have 
better representation. If not, their representation will suffer. 

     In addition to the courts, bar, and public, there is another 
stakeholder. Corporations have a large interest in preserving the 
status quo. Corporation against corporation litigation comprises the 
vast majority of cases in our backlogged court system. They have a 
vested interested in the current system, to which they clearly can 
afford access. If all parties had access, the power balance would 
change, particularly where there are economic inequities between 
parties. 

     I realize that I am conflating the issues of citation system and 
access, but they are inextricably intertwined. One cannot be 
addressed adequately without consideration of the other. 

     An additional issue to be considered is that of "unpublished" 
opinions. These opinions, which can be cited with limitations, often 
lead to new law, theories, or applications and point the way prior to 
any published law. Any citation system must also include unpublished 
decisions. An example of the importance of this is in the area of 
stray voltage. There is little law concerning stray voltage, and of 
the law on the books, most is unpublished. That leaves little 
available for use in stray voltage litigation. Those who have no 
access to unpublished decisions, i.e. West, are at a disadvantage, 
and have no way of knowing of the wealth of unpublished decisions in 
this specific area. 

     I also note that "electronic form" is preferred for comments 
about this proposed citation system change. This has an inherent 
statistical bias in that those who can afford internet access are 
those who will comment, and those who have internet access are also 
those who are likely to be able to afford West as well. Thus, you're 
setting this up for response by those who already have a vested 
interest in keeping West's status quo. This comment opportunity 
should be opened up to EVERYONE. 

Carol A. Overland 
Overlandc@aol.com 
OVERLAND LAW OFFICE 
402 Washington St. So., Suite 225 
Northfield, MN 55057 

(507) 664-0252 
(507) 664-0253 Fax 
!EN