Frank C. Carnahan Carnahan, Evans, Cantwell & Brown, P.C. 1949 E. Sunshine, 4-410 Springfield, MO 65804-1613 Voice - (417) 887-8490 FAX - (417) 887-8935 E-Mail carnahan@cland.net Comments on ABA Resolution on New Citation System The ABA has put forth a resolution recommending implementing a method of uniform citation in all jurisdictions different than the currently used citation to official reporter volume and page. The report's stated goal is a "medium neutral" citation system suited to both print and electronic publication. Motivation for change include the advent of electronic publication, through which materials are often available before print publication and assignment of National Reporter page numbers. Changing official citation format presents concerns similar to other technology changes, e.g. AM radio, high definition television, computer hardware and software etc., and particularly the effect on persons using the prior system, in this case print media citation. Various parties protecting their own interests will result in an inferior solution, and they should cooperate to develop the most effective citation system. Absent a determination of the courts that: 1) pagination is not protectable; 2) citation to printed page numbers is fair use; or 3) the National Reporters pagination has been placed in the public domain, the National Reporters should voluntarily permit without charge reference to their pagination as a parallel citation in the current format. Parallel citations to the National Reporters should also be required by the courts. This would provide the smoothest transition to a system that will effectively deal with electronic publication and a long transition from printed media, the most effective communication between users of different media, and benefit the National Reporters by keeping their print publications viable into the future. The ABA resolution recognizes the difficulty in shifting from the current universally accepted citation format, and states that "Until electronic publications of case reports becomes generally available and commonly relied upon by courts and lawyers in the jurisdiction, the court should strongly encourage parallel citations [to commonly used printed case reports only be to the first page of the report and parallel pinpoint citations should not be required], in addition to the [new format] primary citation. . . ." The ABA's approach attempts to take the middle ground, and does not result in a system the most effective communication of case references between persons using different media, and fails to pinpoint the reference to the other party in an easily usable manner, and thus could require extensive searching to locate the referenced portion. The report does not reference the longstanding objection, including litigation, by National Reporters to reference in electronic publications to pagination breaks and page numbering from National Reporters. That position prevents users of electronic media versions from citing cases in the currently used uniform citation system, at least without substantial payment. The report suggests parallel citation to National Reporters by volume and first page, but not specific page. It is not apparent why pagination is entitled to the protection designed to foster and encourage creative effort, when the placement of page breaks appears to have nothing to do with creative effort, or why the volume and first page should be entitled to that less protection as to be available for parallel citation as suggested by the resolution. The report states a "major point of disagreement is whether or not parallel citations to a specific source, such as Lexis, Westlaw, or the West National Reporter System, should be required in addition to a 'generic' and medium neutral citation." While the report does not explicitly state, this appears to be the large traditionally print publisher's position, who obviously wish to maintain market position. Parallel citation to a National Reporter helps bridge the communication gap between users of print and electronic media. Parallel citation should be required, including citation to specific pages, but National Reporters should make reference to pagination permissible without charge. Failure to follow this course may result in effective communication between users of different media being prevented, and may end up requiring users to maintain both versions to comply by providing specific parallel citation or a standard not requiring parallel citation to the detriment of users and vendors. The report recommends citing cases by stating the year, a designator of the court, the sequential number of the decision, and reference to specific material by paragraph number is medium neutral. The resolution provides that the court will establish the official citation and format prospectively without any retroactive application. Existence of substantial prior print material in circulation which will not comply, or the inability to effectively cite to electronic media for prior materials without reference to the National Reporter is not effectively addressed in the report or resolution. The courts will not be publishing these materials or reformatting them with the suggested format. Print publishers may not reformat prior printed material for new purchasers even if an alternate system to create new citation formats were available. Without the system in place for this prior material or agreement as to use of National Reporter pagination, use of electronic media will be hampered. The resolution makes almost no mention of standardizing formatting, and specifically numbering paragraphs. Placing paragraph numbers before or after the starting paragraph indent may affect readability. Placing the format number in the margin may affect print media, particularly those using double column format. Using smaller type to minimize the paragraph number impact presents difficulties for persons with visual limitations. No definition of paragraph is provided, i.e. is indented material following a major or flush left paragraph (e.g. numbered subparagraphs or block quoted material) included in that paragraph or is it a separate paragraph, or does punctuation or other formatting come into play in that determination. How do charts or graphs etc. fit in, are they to be given their own paragraph numbers. Placing the paragraph number at the end of a paragraph may solve some problems mentioned above, but may interfere otherwise depending on how a the definition of a "paragraph" is determined.