Selected Comments/Documents Submitted to the Committee on Automation Judicial Conference. Set 1, 1-79

Selected Comments/Documents Submitted to the Committee on Automation Judicial Conference. Set 1, 1-79

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The following comments are responses to requests for comments by the Administrative Office concerning the ABA Resolution on ciations. These are made available by HyperLaw with the help of the American Association of Legal Publishers and Tax Analysts. The comments were scanned from photocopies obtained from the Administrative Office of U.S. Courts, which would not provide the copies in electronic form.

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SUBJECT: ABA Resolution on Citations (ACTION REQUESTED)

RESPONSE DUE DATE: March 14, 1997

In August 1996, the American Bar Association (ABA) approved a
resolution made by its Special Committee on Citation Issues calling
for state and federal courts to develop a standard citation system
and recommending a format that could be used by state and federal
courts. That resolution calls for courts to identify the citation on
each decision at the time the decision is made available to the
public. The ABA resolution is attached, and the full report of the
Committee is available from the Administrative Office (202/273-1543)
or through the J-Net (the judiciary's Intranet site) or Internet at
(http://www.abanet.org/citation/home.html).

At the suggestion of members of the Judicial Conference's
Executive Committee, the Committee on Automation and Technology is
seeking written public comments from judges, court personnel, the
bar, and the public as to:

(1) whether the federal courts should adopt the form of official
citation for court decisions recommended by the ABA
resolution; and,

(2) the costs and benefits such a decision would have on the
courts, the bar, and the public.

In addition, a public hearing will be held on Thursday, April 3,
beginning at 9 a.m. in the ceremonial courtroom of the U.S. District
Court for the District of Columbia, 3rd and Constitution Ave., N.W.,
Washington, D.C. to address issues (1) and (2) stated above. Judges
on the Policy and Programs Subcommittee of the Judicial Conference
Committee on Automation and Technology will preside at the hearing.

Anyone wishing to submit additional written comments may send
them via e-mail, fax, or mail to the following addresses:

Mail: Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544

cc:mail: citation AOHUB

Fax: (202) 273-1555

Submission of written comments is preferred in electronic form,
using cc:mail. Any attachments to e-mail messages should be in
WordPerfect 6.1 or earlier versions, or in ASCII. Alternatively,
comments may be submitted in printed form through mail or facsimile.
Written comments are due no later than Friday, March 14, 1997. All
comments received will be considered public information.

Anyone submitting written comments who also is interested in
testifying at the public hearing should submit a written request to
the above address no later than Friday, March 14, 1997. Since it is
expected that only a limited number of requests can be granted, the
request should set forth reasons why an oral presentation, in
addition to written comments, would be helpful to consideration of
these issues. The request should identify the persons who wish to
testify, the subjects to be addressed, the amount of time desired
(the maximum is 15 minutes), the organization represented (if
appropriate), phone number, and fax number. If possible, advance
copies of testimony should be submitted. The Subcommittee will select
representative witnesses to testify.

We ask that clerks of court post the attached notice of the
request for comments and the hearing in a location where members of
the bar who practice before the federal court are apt to see it.
Notice of the hearing is also being provided in the Federal Register
and through the American Bar Association.

If you have any questions about the opportunity to submit
comments or the public hearing, please contact Joan Countryman of the
Appellate Court and Circuit Administration Division at 202/273-1543.

Leonidas Ralph Mecham

Attachments: Notice of Opportunity to Comment and of Public Hearing
ABA Citation Resolution

* * *

cc: Committee on Automation and Technology

In August 1996, the American Bar Association (ABA) approved a
resolution made by its Special Committee on Citation Issues calling
for state and federal courts to develop a standard citation system
and recommending a format that could be used by state and federal
courts. That resolution calls for courts to identify the citation on
each decision at the time the decision is made available to the
public. The ABA resolution is attached, and the full report of the
Committee is available from the Administrative Office (202/273-1543)
or through the J-Net (the judiciary's Intranet site) or Internet at
(http://www.abanet.org/citation/home.html).

At the suggestion of members of the Judicial Conference's
Executive Committee, the Committee on Automation and Technology is
seeking written public comments from judges, court personnel, the
bar, and the public as to:

(1) whether the federal courts should adopt the form of official
citation for court decisions recommended by the ABA
resolution; and,

(2) the costs and benefits such a decision would have on the
courts, the bar, and the public.

The Committee on Automation and Technology has prepared the
brief survey of judges attached to this memorandum and asks that
judges complete the form and return it by March 14.

Anyone wishing to submit additional written comments may send
them via e-mail, fax, or mail to the following addresses:

Mail: Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544

cc:mail: citation AOHUB

Fax: (202) 273-1555

Submission of written comments is preferred in electronic form, using
cc:mail. Any attachments to e-mail messages should be in WordPerfect
6.1 or earlier versions, or in ASCII. Alternatively, comments may be
submitted in printed form through mail or facsimile. Written comments
are due no later than Friday, March 14, 1997. All comments received
will be considered public information.

In addition, a public hearing will be held on Thursday, April 3,
beginning at 9 a.m. in the ceremonial courtroom of the U.S. District
Court for the District of Columbia, 3rd and Constitution Ave., N.W.,
Washington, D.C. to address issues (1) and (2) stated above. Judges
on the Policy and Programs Subcommittee of the Judicial Conference
Committee on Automation and Technology will preside at the hearing.

Anyone submitting written comments who also is interested in
testifying at the public hearing should submit a written request to
the above address no later than Friday, March 14, 1997. Since it is
expected that only a limited number of requests can be granted, the
request should set forth reasons why an oral presentation, in
addition to written comments, would be helpful to consideration of
these issues. The request should identify the persons who wish to
testify, the subjects to be addressed, the amount of time desired
(the maximum is 15 minutes), phone number, and fax number. If
possible, advance copies of testimony should be submitted. The
Subcommittee will select representative witnesses to testify.

If you have any questions about the opportunity to submit
comments or the public hearing, please contact Joan Countryman of the
Appellate Court and Circuit Administration Division at 202/273-1543.

Leonidas Ralph Mecham

Attachments: Survey Form
ABA Citation Resolution

* * *

ABA RESOLUTION ON UNIVERSAL CITATION SYSTEM
FEDERAL COURT JUDGE SURVEY FORM

1. Should the clerk of your court be required to add an official
citation number beyond the case number to each opinion?

2. Should the federal judiciary require the use of the official
citation?

Permit it?

3. Should federal judges number the paragraphs in an opinion so that
there may be pinpoint citations in which no private sector company
can have a copyright?

Name of Judge: Circuit:

Court: Date:

Please return this form to: Appellate Court and Circuit
Administration Division
ATTN: ABA Citation Resolution

Fax Telephone Number: (202) 273-1555

Mailing Address: Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544

Please return this form by March 14, 1997.

RE: American Bar Association Resolution on Electronic Citations

Dear Mr. Mecham:

You have recently circulated a survey soliciting views on the
American Bar Association's ("ABA") resolution urging the adoption of
a uniform electronic citation format. In a letter to the ABA, the
Federal Appellate Clerks unanimously opposed the proposal as then
written. Unfortunately, the ABA made no changes in response to that
letter and adopted the resolution now before us.

The clerks did not oppose standard electronic citation formats
and the ABA does not explain why "blue book" electronic citation
format is not acceptable. Rather, the clerks' objection stems from
the increased administrative burden that would result from the new
format.

For example, the proposed format dispenses with the case number
as the identifier for the disposition and replaces it with a
"sequential" number. An opinion identifier which does not include the
actual case number of the appeal is, by itself, meaningless. A reader
who has only the sequential number will always have to take an
additional step to determine the case number before the file or
procedural history of the case can be accessed. In effect, reliance
on a sequential number to identify opinions requires use of a "key"
to translate the opinion number into a case number. This is
especially important now that the courts offer on-line access to
docket information and opinions.

Several questions about this translating key are not answered by
the ABA's resolution. Who will create and maintain the key? How will
researchers access it? How long will it have to be maintained for
future readers' use? If the ABA format is adopted, we believe that
the clerks of the circuit courts will be required to create and
maintain these keys, to provide the information to users through our
existing staffs and resources, and to maintain the keys forever.

Additionally, the use of a sequential number to identify
opinions complicates our internal operations. Each clerk's office
will have to create and maintain new databases to track this
information, and we will have to train deputies in their use. Please
note that the proposal seems to also apply to unpublished
dispositions. To comply with the ABA resolution all dispositions
would have to be sequentially numbered by court staff -- in order of
disposition.

Finally, it does not appear to me that the sequential identifier
is simpler to use than a case number identifier. Is 1977 DC Cir.
133U, for example, any easier to use or remember than the current
system based on case number, court and date of issuance? The
difference between the two forms of citation is simply not
significant enough to justify the loss of the important information
provided by a citation which includes the actual case number and the
date of issuance.

The D.C. Circuit is currently making due with reduced staff
allocations. In this environment, any suggestion for a change in
procedures which requires the expenditure of additional resources and
staff time must be carefully examined. A change of this scope should
only be implemented when a persuasive case can be made that the
change will improve the service we offer the bench, the bar, and the
public. It is not at all clear that this proposal will offer benefits
sufficient to outweigh the administrative costs.

I do not object at all to uniform electronic citation. My
objection is to a format that would require each Court to completely
change the way it dockets decisions or to set up a parallel docketing
system without sufficient justification for the new format.

As for numbering paragraphs in an opinion, I have no objection
so long as the need to insert the numbers does not create a
significant burden on the judiciary. Although I fear that the
numbering would have to be done in chambers, and would create
substantial headaches, I imagine that it might be feasible to
accomplish.

Sincerely,

Harry T. Edwards
Chief Judge

PARAGRAPH NUMBERING AND OTHER DEVICES FOR FACILITATING PIN
CITES

I strongly oppose adoption of a practice of numbering paragraphs
in judicial opinions. Few changes would more aptly symbolize and
advance the bureaucratization of the federal judiciary. The style
belongs to the civil law tradition and to decisions of the Federal
Communications commission, not to the common law.

The purpose of making possible pin citations in which no private
sector company has a copyright can be as well achieved by allowing or
requiring citation to pages of the slip opinions, identified by *s.
(That may require insertion of some computer symbol in the
computerized version of the slip opinion, but I don't see why that
should be a difficulty.)

SGU

Norman Meyer
Clerk of Court
E. District of Virginia

Very truly yours,

Leonie M. Brinkema
United States District Judge

Ms. Joan Countryman
Appellate Court and Circuit
Administration Division
Attention: ABA Citation Resolution
Suite 4-512
Administrative Office of the
United States Courts
Washington, DC 20544

Dear Ms. Countryman:

I second Judge Brinkema's letter to you of March 5, 1997,
regarding the ABA's official citation form.

Very truly yours,

James C. Cacheris

Appellate Court and
Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, DC 20544

Dear Ms. Countryman:

My initial response to the questionnaire concerning the ABA
Resolution on Citations was simply to answer "no" to each of the
questions posed and further to note that "[T]hese proposals are
unnecessary, fail any cost/benefit analysis and are likely
unenforceable. The ABA should stay out of interfering with judge's
work."

To that, I wish to add that I support the views expressed by
Judge Brinkema in her thoughtful letter of March 5, 1997. As a matter
of principle, neither the ABA nor any other external organization has
any business setting standards for judicial opinions, however
innocuous the proposed standards may appear.

Sincerely

T.S. Ellis, III
United States District Judge

Appellate Court and Circuit Administrative Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544

Dear Sir or Madam:

I am pleased to have the opportunity to comment on the ABA's
Citation Resolution. I am a recent law school graduate, and I hold a
Ph.D. in English literature; I think this gives me a useful
interdisciplinary view on the importance of citations. Also, I
presently clerk for a Federal judge, which I believe gives me a
practical view on citations in action. The remarks that follow are
entirely my own, and in no way reflect the opinions of any
organization or of anyone but myself.

I approve, in premise, of the proposed modifications to citation
format. Establishing a universal "generic" citation form (that is not
the property of West or some other publishing organization) is an
important step toward returning law to the public domain; one's
ability to create an appropriately-cited legal document should not
depend upon one's financial ability to access West's publications.
Furthermore, the economy of style in the proposed modifications is a
pleasant correction to the present complexity generated by the need
to cite many different case reporters. However, any adjustment to
the citation format is incomplete without more careful consideration
of the purpose and deployment of citations. Just changing the
citation format is, if you will allow me the simile, like repainting
an old car: it may look better, but you will not get any additional
mileage out of the work.

The primary purpose of a citation is to allow one to quickly and
easily find the cited material so that it can be checked for
denotative accuracy and analyzed, in context, to determine its
connotative accuracy. With present electronic technology, it is
possible to file an electronic brief or other judicial document with
hypertext links that allow one to jump from a citation to the
material cited. In such a situation, the importance of the citation
form declines because, ultimately, it is not the form of the citation
that matters but its ability to lead us to the cited material: any
accurate form suffices.

In short, I believe that any revision to citation format should
be less concerned with a cosmetic change in format -- a change that,
by definition, will be only a stop-gap on the road to more user-
friendly electronic court documents -- and more concerned with
developing:

1) Parameters for the filing of electronic judicial documents
with hypertext/direct links to the cited material; and

2) Provisions for developing a public database to which such
links can be made without the current cost of electronic access
through Lexis or Westlaw.

Absent such forward-looking changes, any change to citation form
is likely to require additional modifications in the near future, and
citation forms are -- for obvious reasons -- not things that should
be subject to frequent revision.

Thank you for your consideration.

Sincerely,

Michael R. Seidl

March 7, 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

In August 1996, the American Bar Association (ABA) approved a
resolution made by its Special Committee on Citation Issues calling
for state and federal courts to develop a standard citation system
and recommending a format that could be used by state and federal
courts. That resolution would require courts to identify the citation
on each decision at the time the decision is made available to the
public. The standard form of citation, for a decision in a federal
court of appeals, should include the year of the decision, the court,
the decision number, the paragraph number where the material referred
to is located and the parallel citation.

This office opposes the ABA resolution. We see no need to
introduce a new sequential decision number into the operations of
this court. To create the ABA proposed "standard" form of citation
would require additional work at several levels. Initially, we would
have to:

1. Devise and coordinate with our judges a means for assigning
the sequential decision numbers;

2. Create or modify existing AIMS events for the decision number
to be included in the AIMS database;

3. Devise a means of answering inquiries from the public seeking
information on the new decision number assigned;

4. Create and maintain a permanent cross reference between the
docket number and the opinion number;

5. Train employees to answer inquiries from the Court and the
bar on the newly established procedures.

Several of the above tasks would also have to be preformed in a
daily basis. We estimate an opinion clerk would have to spend an
additional five minutes per opinion to assign a decision number and
docket the appropriate information in AIMS. We also estimate another
five minutes per opinion for the authoring judge's staff to number
the paragraphs of the opinions. Our biggest concern is the time
clerk's office personnel will spend answering inquiries from the
public regarding gaps in decision numbers, if for example an opinion
is withdrawn, requesting citations, and requesting the full case
information when all they have available is a citation.

Now that virtually all the circuit courts' opinions are
available on the Internet, there is a great public access to the
court's decisions. At least in this court, our opinions are
identifiable by case number, court and date of decision,, e.g. Smith
v. Jones, No. 97-10113 (5th Cir. Mar. 7, 1997). We question why we
would want to invest time and money in the ABA proposed form, when it
imposes a burden on this court with no perceptible benefit.
!NR
Sincerely,

Charles R. Fulbruge III

Message Contents

I would like to respond to the February 20, 1997 Memorandum
concerning the ABA Resolution on new citation forms.

As a law clerk in the federal judiciary system for almost nine
years, I feel I have some expertise on this issue. I cannot
wholeheartedly endorse the concept of an "official citation" beyond
those currently in use. A system that is not in any way dependent on
a judge's own evaluation of which opinions have precedential value is
not a good one. However, because of the increasing use of electronic
case reporting for various reasons, I suppose such citation changes,
as well as a departure from dependency on the West citation system,
is ultimately inevitable. Nevertheless, I am not in favor of the
sequential numbering system used in the proposed citation form.

From the vantage point of the Bankruptcy Court and Clerk's
Office, this would be a very difficult numbering system to implement
and to track. Not all opinions are entitled as such, yet an "Order
and Reasons" might also be worthy of receiving an "official
citation". On the other hand, if every order or minute entry which
the Court issues is to receive a citation, then the citation numbers
could get quite high. Another foreseeable problem is logistical in
that the sequence of numbers would have to be closely tracked to make
sure each opinion, order, etc. that is worthy of citation receives a
different number. In our Court, several case administrators docket
pleadings for both judges and could end up unknowingly numbering
different opinions with the same number. Additionally, I think the
proposal to have the Court number each paragraph in an opinion is
cumbersome and unnecessary since the pages are already numbered and
this can be used for reference.

I believe the citation system used for unpublished decisions,
and which is in use as the "official citation" for many states
courts, is preferable for the federal courts. This would mean citing
a decision using the case number, the court name and the date of the
decision. This method uses information already recorded for each
decision and does not depend on an arbitrary numbering system.

I hope these comments assist in the gathering of information
concerning this proposal.
!NR
Sincerely yours,

Gretchen Thiberville
Law Clerk to
Judge Thomas M. Brahney, III
United States Bankruptcy court
Eastern District of Louisiana

TO: citation at AO-OCPPO at 5BC-LAE-Neworleans
Subject: ABA RESOLUTION ON CITATIONS

Message Contents
!EN
As a law clerk in the federal judicial system for six years, I
have some expertise on case citations, and would like to comment on
the ABA resolution on citations.

I disagree with the citation form proposed and approved by the
ABA.

Consecutively numbering the opinions from each district would be
very cumbersome and difficult. From the viewpoint of a bankruptcy
judge, it would be difficult to determine which orders get a number.
Some minute entries/orders are short, and may cite to only one case.
Would these be included within a consecutive numbering system? If so,
the consecutive numbers would end up being quite large. This would
lead to an increased likelihood of typographical errors in citations.

I think that long term, some type of citation system that is not
dependent on the West system is inevitable. I don't really like this
because some cases are not worthy of precedential value, and the
present system where the judge sends off the decisions that the judge
believes are appropriate for publication is a good one.

However, assuming that change is inevitable, the best way to do
that is to use the form, or a variation thereof, of the system
presently used for unpublished decisions. Citing the case name,
number, and date of the opinion would do a better job than the system
proposed by the ABA because it is less prone to typographical errors,
and does not require some arbitrary numbering system by the Clerks'
offices.

It would also be cumbersome to have the court number paragraphs
in an opinion, when the publisher can use the page numbers of the
court's opinion.

I have shown these comments to Judge Brown. He advised me to let
you know that he agrees with them.

I hope this is of assistance to you in your information
gathering phase.
!NR
Sincerely,

R. MARLA HAMILTON
LAW CLERK TO
JUDGE JERRY A. BROWN
UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF
LOUISIANA

FROM: Judge Leif M. Clark
U.S. Bankruptcy Judge
Western District of Texas
P.O. Box 1439
San Antonio, Texas 78298

DATE: <Date>

RE: Comments regarding the ABA Resolution on Citations

I have a few comments to accompany my response to the survey
initiated by the Administrative Office, Appellate Court and Circuit
Administration Division.

A. First and foremost, the basic concept proposed by the ABA
Resolution is sound policy, for the following two reasons:

1. The courts of this country ought not be "hostage" to a
private publisher, which can claim copyright protection for
pagination, format, and the like. Ever since I first entered law
school, I have marvelled that the "official reporters" for both state
and federal courts around the country are private publishers. How
odd!

2. The new pagination suggested by the ABA appropriately lays
the groundwork for the coming age of electronic access to
information, including court decisions. Ought there really to be a
distinction between those decisions mailed to a private publisher and
those decisions not mailed to a private publisher? Are there not
important precedents at the local level with which local lawyers
might be familiar, while lawyers outside that jurisdiction may remain
in the dark? Truly EQUAL access to justice demands equal access to
such precedents, and electronic access promises just that. As more
and more opinions of judges are "scanned" into the data base not only
of private publishers but also the database of the courts themselves,
the notion of a private publisher exercising some sort of domain
claim on these decisions will (and ought to) become increasingly
anachronistic. Few things could ease this process more, it seems to
me, than a system of universal citation like that proposed by the
ABA.

B. These general comments having been noted, let me add a few
more specific points.

1. Will the universal citation system proposed apply only to
circuit courts and their decisions? The ABA Resolution appears not to
be so limited, but it was difficult to tell from the materials sent
me. In fact, I found the materials woefully short on background
information of any sort at all -- all out of keeping with the normal
sort of survey usually conducted by the Administrative Office. Why is
that?

2. What is an "opinion"? Does it include all orders (a very
critical issue for a court that signs thousands of orders a year,
most of which are "form orders" prepared by counsel)? Only orders
that are denominated "opinion"? Would it include "memorandum
decisions," or simply "decisions"? This becomes much more of a
problem at the trial level -- and not simply a problem for the judge
but also for the clerk of court who is expected to assign a number to
that decision. How does the clerk know which matters are to receive a
number? How does the clerk know what number to give the matter, in a
multijudge division or jurisdiction? Would there be a "divisional"
breakdown required in the citation format? Would there be a separate
numbering maintained for each judge at the trial court level, or
would numbering be applied to decisions by any judge at the trial
level?

3. Who would decide what receives an "official" citation? Would
bankruptcy decisions continue to be cited? Frankly, I think they need
to be, but some of my colleagues on the district court might well
disagree, especially given that magistrate judge decisions are
normally not published currently. Perhaps they should be. Will this
end up becoming a political issue -- or worse, a "turf" issue?

4. Would there be a way in which courts could designate a given
writing as NOT an "opinion," so that it could not be cited? Does this
allow the courts to control the scope or direction of precedent?

5. Does the numbering of paragraphs really cause any problems
with the "flow" or "readability" of decisions? Some of us (perhaps
unwisely) fancy ourselves pretty good writers and may find the
mandatory numbering of paragraphs constricting.

6. Would there be separate numbering for footnotes, or would
they be expected to follow the paragraph from whence the footnote
comes (I would expect the latter, but the resolution is silent on the
issue).

7. What about addenda or "exhibits" that might be attached to
the opinion? Would those be "numbered"?

8. What would be the standard citation format for bankruptcy
court decisions?

C. Overall, despite the questions, I favor a universal citation
system freed of its ties to a given private enterprise. The problems
are there to be solved, but the ultimate goal appears to me to be
both worthy and likely to accelerate the automation of legal
research -- a positive move in my view.

D. I am concerned that the materials furnished in this survey
were woefully inadequate in addressing what I believe are very real
issues for the judges who are being asked to complete this survey.
The questions in the survey are "bottom line," and do not reflect the
nuances of the issue, or the myriads of reasons that a given judge
may have answered in the way he or she did. As a result, I think it
will be dangerous indeed to draw any conclusions of value with regard
to the attitude of the federal judiciary to this issue. For example,
the first question might be answered "no" by someone simply concerned
about the use of the verb "required" in the question, or by someone
who believes that someone other than the clerk ought to be doing the
assigning. Yet that same person may well favor some form of assigning
an official citation number. What will the Appellate Court and
Circuit Administration Division hope to conclude from the answers to
the first question? With neither any particular background materials
(beyond the bare resolution of the ABA), nor refinement in the
questions asked, any conclusions drawn from this survey are
inherently suspect.

E. I am also concerned that the tenor of the questions seems to
be pitched to encourage a negative response to the ABA Resolution.
Certainly we cannot offer an "unbiased" reaction on behalf of the
Judiciary if we have in fact built bias into the questions, thus
loading the answer.

Thank you for affording us the opportunity to have input into
this important issue. I hope that the Administrative Office continues
to closely examine and pursue the issue.

TO: Appellate Court and Circuit Administration Division
Administrative Office of the U.S. Courts
ATTN.: ABA Citation Resolution

FROM: Nancy Doherty

SUBJECT: ABA RESOLUTION ON CITATIONS

Thank you for the opportunity to respond to the ABA resolution
on citations. I have advised several judges of my court that I do not
believe the courts can implement the ABA resolution without adding a
great deal of work to clerk's offices. As most of the judiciary
realizes, this system also raises a number of philosophical and
quality control issues.

1.     Workload Issues

In addition to being the official repository for case
information, the clerk's office would become responsible for
assigning numbers to opinions and storing them in an electronic
format that is readily accessible to the public. Also, it will be the
responsibility of the clerk's office to ensure that opinions are in
the appropriate format and that paragraph numbers are embedded
properly. In other words, the clerk's office would take on an
entirely new "editorial" role. This new work would come at a time
when our office is under increasing pressure to produce more and
provide better and faster service with fewer resources.

It does not appear to me that the courts are prepared to take
over a service that historically has been provided in the private
sector with few problems. Until such time that a system has been
designed for federal courts to use to affix citation numbers, embed
paragraph numbers and archive opinions and can be easily implemented
with existing staff, I am adamantly opposed to our office taking on
this additional responsibility. At the present time we need better
systems to support many of our core responsibilities (e.g. electronic
filing). Diverting scarce systems resources to develop a new
information system for opinions would be counterproductive and
costly.

I assume numbering of paragraphs would present extra work for
judges' staffs. Depending on when a judge makes the determination
about publishing, it's possible that all opinions would require
paragraph numbering. At this time, my understanding is that the
resolution is only referring to published opinions. However, should
this idea merely be a first step toward giving all district court
opinions a citation number and making them readily available to the
public, there are serious implications for the judiciary. If district
judges are called upon to write ALL opinions for publication, the
time it takes to write opinions would increase. And more importantly,
if all opinions are "published" electronically, opinions might lose
their persuasive value.

2.     Quality Control Issues

If and when such a system is implemented, it could lead to
issues of quality control. Although I am assuming that these issues
have been discussed at great length by those who are far more
knowledgeable than I am, I mention them for informational purposes
only. For example, if a public domain citation system is adopted as
proposed, opinions in electronic format will be easy and inexpensive
to obtain. As a result, a new cottage industry may emerge. It is
certainly possible that not all publishers will adhere to the quality
standards we have come to expect from official reporters.
Furthermore, electronic information is more easily manipulated than a
fixed medium, so unacceptable variances in the opinions may develop.
Federal district clerk's offices, as official repositories, will
necessarily be involved in verifying information if disputes arise
over contents of opinions.

I know there is a great deal of interest in getting opinions
electronically rather than through a book publisher. I have been
asked on several occasions to provide this kind of information. At
this time we only provide it in hard copy and charge $.50/page. We
expect many changes because of the advances in electronic publishing.
However, I think the extra work should be borne by vendors and not by
the courts.

c: Chief Judge Jerry Buchmeyer

Hon. J. Owen Forrester, Chairman
Automation & Technology Committee
Judicial Conference of the United States
75 Spring Street, S.W.
Room 2367
Atlanta, GA 30303-3361

Dear Judge Forrester:

I am enclosing herewith, with my enthusiastic endorsement, Judge
Stephen Williams's response to the ABA resolution on universal
citation. I agree with Judge Williams 100 percent that the numbering
of paragraphs in judicial opinions would be a mistake. It would
disfigure and bureaucratize the opinion-writing process, and, as he
explains, is quite unnecessary. I hope that you will give the most
serious consideration to his suggestion.

I also wish to raise with you the question of the NECESSITY of a
universal citation form, as anyone with the West citation can readily
locate the opinion on-line if he prefers that to the book version.

Sincerely,

Richard A. Posner

Enclosure

CC: Appellate Court and Circuit
Administration Division

RE: Comments concerning ABA Resolution in Universal Citation System

Dear Ms. Countryman:

In responding to the Administrative Office February 20th
memorandum this writer has searched in vain for any prior
communication evidencing a "problem" that needed "fixing" relative to
the present citation system.

A cursory review of the Federal Supplements reveals there are no
standards concerning what opinions are published or unpublished.
Apparently the law publishers print everything submitted. This should
not be. Case after case in the Federal Supplements concern the fact
intensive granting or denying of dispositive motions carrying no new
legal principle in application or genesis. Thus, the 'data bases' are
cluttered with unimportant decisions becoming elevated to 'head
notes' for citation which give no precision in law application
whatever. This 'Law of headnotes' does nothing to advance legal
scholarship, except help build strings of citations.

To require additional citations beyond the case number with the
numbering of each paragraph is an onerous burden upon court staff
with no measurable benefit to the court and benefit only to the 'date
base' private publishers. This cost shifting from the private to the
public sector is clearly unwarranted.

Sincerely,

Robert Holmes Bell
United States District Judge

1. Numbering paragraphs in opinions would be both cumbersome for
the writer and bothersome to the reader.

2. Numbered paragraphs could also lead to confusion where an
opinion also enumerates elements or factors.

3. Having already memorized the Bluebook, judges, clerks and
lawyers will not be inclined to learn and use yet another citation
system.

I believe that many of the ABA's concerns could be ameliorated
if West Publishing and other "official reporters" did not attempt to
assert copyright protection over the pagination of published
opinions.

ERIC S. RICHARDS
Judicial Clerk to the
Hon. James D. Gregg
United States Bankruptcy Court
for the Western District
of Michigan
Gerald R. Ford Federal Building
P.O. Box 3310
Grand Rapids, MI 49501
Telephone: (616) 456-2052
Telefacsimile: (616) 456-2425
"erichards@ck6.uscourts.gov"

Michael E. Gans
Clerk of the Court
March 14, 1997

Mr. John Hehman
Chief, Appellate Court and
Circuit Administration Division
ATTN: ABA Citation Resolution
Administrative Office of the
United States Courts
Washington, D.C. 20544

Re: ABA Citation Resolution
!EN
Dear Mr. Hehman:

A number of the federal circuit clerks have asked me, as chair
of the Appellate Court Clerk's Advisory Committee, to submit the
following comments on the ABA resolution on case citation for
consideration by the Policy and Programs Subcommittee of the Judicial
Conference Committee on Automation and Technology. I should note that
while the positions expressed in this letter represent the views of
the majority of the circuit court clerks, some clerks were not able
to sign on to the letter because their courts were still discussing
the resolution at the time this letter was prepared.

In summary, we dispute the need for the alternative case
citation system proposed in the ABA's resolution. We believe "Blue
Book" citation of unpublished opinions (by case number, court and
date) is still the most effective method for citing electronically
reported opinions. We strongly oppose the creation of an opinion
citation system which identifies opinions by anything other than the
case number assigned by the issuing court. The remainder of this
letter will outline the reasons for our positions and note some other
concerns we have been regarding the ABA resolution.

We wish to begin our discussion by noting that we have strongly
supported the electronic dissemination of federal appellate court
opinions. The federal courts of appeals have taken the lead in the
development of electronic bulletin board systems for the distribution
of opinions and case-related information. Currently, lawyers and
researchers throughout the nation use these systems to retrieve
circuit court opinions. Additionally, we have actively participated
with a consortium of law schools around the country to make the
courts' opinions accessible through the Internet. This project has
made opinions available without charge to literally millions of
computer users around the world. As a result of these two efforts,
federal appellate court opinions are more widely available than ever
before. So we approach the ABA resolution with a wealth of practical
experience as to how electronic distribution systems work and how
these cases are cited.

We would also like to note that the issue of an alternative
citation system for opinions was addressed by the appellate court
clerks and the Judicial Conference of the United States several years
ago. At that time the clerks unanimously recommended rejection of a
proposal very similar to the ABA's current resolution. The Judicial
Conference eventually voted to reject the proposal. We also offered
comments last April to the ABA committee which was working on the
current resolution; in those comments we strongly opposed the
resolution.

Our experience since we first addressed this issue has confirmed
our belief that an alternative citation system based on sequential
opinion number is not needed in the federal courts. Neither attorneys
practicing in our courts nor judges researching and writing opinions
have expressed the view that the current system of citation based on
case number, date of issuance and court hinders their use or citation
of federal court opinions. Likewise, no judge or attorney has ever
expressed to any of us any desire to adopt a citation system such as
the one proposed in the ABA resolution. In our opinion, the proposal
to create a citation system based on sequential opinion numbers is a
solution in search of a problem.

Assuming for the sake of argument that a new system of citing
opinions is required because of the widespread use of electronic case
reports, it has always been our position that the system must be
based on the case number assigned by the issuing court. We take this
position for several reasons.

First, the issuing court case number is the key to the history
of the case, its current status and all of the documents in the
appeal. An opinion identifier which does not include the actual case
number of the appeals is, by itself meaningless. A reader who has
only the sequential number will always have to take an additional
step to determine the case number before the file or procedural
history of the case can be accessed. In effect, reliance on a
sequential number to identify opinions requires use of a "key" to
translate the opinion number into a case number. This is especially
important now that the courts offer on-line access to docket
information. Future plans to create on-line access to the actual
documents in the case file will make the case number even more
critical to researchers.

Several key questions about this translating key are not
answered by the ABA's resolution. Who will create and maintain the
key? How will researchers access it? How long will it have to be
maintained for future readers' use? We think the answers to these
questions are that the clerks of the circuit courts will be required
to create and maintain these keys, that we will have to provide the
information to users through our existing staffs and resources, and
that we will have to maintain the keys forever.

All of the circuits are currently making do with reduced staff
allocations. Many of us are struggling to maintain the high level of
service we provide the bar and the public. In this environment, any
suggestion for a change in procedures which requires the expenditure
of additional resources and staff time must be carefully examined. A
change should only be implemented when a persuasive case can be made
that the change will improve the service we offer the bench, the bar,
and the public. We believe that the creation of a case citation
system based on a sequential opinion number does not meet this test.

Second, the use of a sequential number to identify opinions
complicates our internal operations. Each clerk's office will have to
create and maintain new databases to track this information, and we
will have to train deputies in their use. Additionally, some courts
have opinion issuance procedures and agreements with printing vendors
which would cause confusion with respect to the date of issuance if a
sequential numbering system is adopted. For example the Fifth Circuit
designates certain opinions for issuance through their printer only,
while others issue in manuscript form. The opinions issued through
the printer are actually released some time after they are received
in the clerk's office due to their printing schedule and, as a
result, their numbering would fall outside the numbering sequence
anticipated by the ABA resolution.

Third, we believe the sequential identifier is no simpler to use
than a case number identifier. For example, nearly all of the
circuits issue more than a thousand opinions a year. Is 1997 8th Cir.
1234U any easier to use or remember than the current system based on
case number, court and date of issuance? The difference between the
two forms of citation is simply not significant enough to justify the
loss of the important information provided by a citation which
includes the actual case number and the date of issuance.

Finally, the actual date of issuance of information contained in
the current form of citation is important to many users, as it
provides direct access to information on our opinion bulletin board
and Internet sites, nearly all of which organize opinion directories
by date of issuance.

We hope the Subcommittee will carefully examine the use of a
citation system based on sequential opinion identifiers which are
unrelated to case number. We would be happy to provide additional
information about its impact on our operations or answer any specific
questions the Subcommittee might have.

We also have concerns with two other provisions of the ABA
resolution.

First we object to the provision that the courts should add
paragraph numbers to the opinions. We believe this would entail
substantial additional work for chambers and for clerks' offices. In
our opinion the court should be responsible for the text of the
opinion and initial page numbering, and all other services, including
paragraph numbering, should be left to the marketplace.

Second, the resolution does away with the current practice of
providing a parallel pinpoint cite to the Federal Reporter citation.
For the foreseeable future, the Federal Reporter will continue to be
a significant research tool for judges, lawyers, prisoners and other
pro se litigants. Eliminating the parallel pinpoint cite leaves many
readers either greatly inconvenienced or at a significant
disadvantage, while including it requires little additional effort on
the part of the writer. Although the ABA may well be correct in its
prediction that primary reliance for case citation will eventually
shift to electronic case reports, the clerks believe this day is far
enough off that parallel pinpoint cites must still be required.

When we forwarded our comments to the ABA's Special Committee on
Citation Issues last April, we invited the Committee to open a
dialogue with us on issues related to opinion issuance and citation.
We regret that the Committee did not see fit to respond to our letter
or address our concerns. As the court officers charged with the
responsibility for issuance of federal appellate court opinions and
maintenance of the courts' official records, the clerks of court have
a vital interest in this topic and are in a pivotal position to help
shape opinion and practice. We hope that the Committee on Automation
and Technology will give serious consideration to the concerns
expressed in this letter.

Please let me know if our group can be of any further assistance
to you or the Committee.

Sincerely,

Michael E. Gans
Chair, Appellate Court
Clerks Advisory Committee

cc: All Circuit Court Clerks

At a meeting of the U.S. District Court Judges in the District
of Minnesota on February 26, 1997, the Court considered carefully the
recommendations of the Special Committee on Citation Issues of the
American Bar Association that state and federal courts develop a
standard citation system and uniform format.

After discussing this matter, it was a consensus of the Judges
that the federal court should not adopt the form of official citation
for court decisions recommended by the ABA resolution. Further, it
was a consensus of the Judges that the Clerk of Court should
communicate their position to the appropriate individual or body.

Sincerely,

Francis E. Dosal, Clerk
U.S. District Court
St. Paul, Minnesota

cc: U.S. District Judges

SENT VIA FACSIMILE AND U.S. MAIL

Appellate Court and Circuit
Administration Division
Attn: ABA Citation Resolution
Administrative Office of the
United States Courts
Washington, D.C. 20544

Dear Committee Members:

The Ninth Circuit Advisory Committee on Rules of Practice and
Internal Operating Procedures requests consideration of the following
comment on the American Bar Association's Resolution on Citations.

Although the concept of an alternate uniform system for citation
of opinions is desirable, we have concerns about some aspects of the
ABA's proposal. Specifically, requiring courts to assign a unique
sequential number for each decision, and then assign numbers to the
paragraphs within each decision, places too heavy a burden on courts
for too little benefit. We believe that the existing document numbers
assigned to cases and the existing page numbers, together with the
date of the decision, is sufficient reference. We therefore believe
that the system proposed in the "Blue Book," paragraph 10.8.1, is
superior to that proposed by the ABA Resolution.

Very truly yours,

Peter W. Davis
Advisory Committee on Rules of
Practice and Internal Operating
Procedure of the United States
Court of Appeals for the Ninth
Circuit

Re: ABA Resolution on Citations

Dear Mr. Lee:

The main problem that I have with the ABA Resolution on
Citations is the difficulty of numbering the paragraphs in an
opinion. Numbering the paragraphs after an opinion is completed is a
substantial job. The only practical solution is to number the
paragraphs as the opinion is written.

It turns out that numbering the paragraphs is a much more
complicated matter then might appear. I have asked our supervisor of
training to inform me how to do it. I attach the 15-step set of
instructions that she has provided, after consultation with
WordPerfect.

It appears that these instructions work. However, the expertise
required for setting up the outline program to number the paragraphs
is probably beyond the technical expertise of most judges.

If the courts around the country have the technical expertise to
set up the outline program to number the paragraphs, I have no
reservations about implementing the requirement.

Please feel free to share the attached directions with all of
the courts.

Very truly yours,

SAMUEL L. BUFFORD

Attch.

cc: Judge Geraldine Mund
Mr. Jon D. Ceretto
Ms. Sandi Brask

CREATING A NEW OUTLINE STYLE

1. Click on Tools in the Menu bar.

2. Click on Outline.

3. Click on Options.

4. Click on Define Outline.

5. Click on Paragraph.

6. Click on Options.

7. Click on Setup. Change "default location" to "default
template." (This only has to be done one time no matter how
many outlining options you want.) Click on OK.

8. Click on Create.

a. Type in the name of the outline definition.

b. Type in a description if you want one.

9. Click on Create Style.

10. In the Styles Editor dialog box

a. Type in the name of the style.

b. Type in a description if you want one.

c. Make the following changes:

Select Format/Line/Spacing -- adjust line spacing (1.5
or 2.0), click on OK.

Select Insert -- click on Insert Tab

Delete [hd Left Ind] code

Tap the space bar twice

d. Click on OK.

11. The name of your new outline will appear in the Associated
Style text box. Click on OK.

12. The Outline Define dialog box will appear. Choose the
outline you want to use. Then, click on OK.

13. To use the new Outline feature, close the document. On a new
document click on Tools from the Menu bar.

14. Click on Outline.

15. Select the Outline Style you just created.

As we have discussed on at least two occasions, the last being
in conjunction with the Bankruptcy Clerks' Advisory Group conference
call on March 12, 1997, it seems to me ill-advised for the judiciary
to agree or commit to the use of the proposed citation system as
captioned above, I know that you are thoroughly familiar with my view
and that of other clerks, but for the record, the problem resides in
the requirement of the system that all judicial opinions include in
their citation, an "opinion number" to be assigned serially to each
opinion as it is signed (released, docketed?).

The burden imposed by this requirement would involve substantial
resource allocation, either in work-hours or computer time and
programming. For example, in a large court with a number of judges
staffing chambers at several divisional offices, where the judges
were to sign opinions on a fairly frequent basis, a process to assign
discrete opinion numbers for each would require a person or persons
to coordinate the assignment (probably impossible to do accurately
and timely, certainly very difficult), or a computer program to
automatically check the data base and assign such numbers. In either
case, it is not clear at all, that the benefit to the court customer
is sufficient to justify the burden imposed on the courts' limited
resources. The committee should reject the "opinion number" element
in the citation system,

cc: Glen Palman

Date: Fri, 14 Mar 97 10:59:02 CST

Subject: In Favor of Public Comain Citation System

To whom it may concern:

I want to register my strong preference for a vendor neutral,
public domain system of citation of judicial opinions. I have read
about and considered this issue for the past two or three years, and
have concluded that it makes sense to establish a system of citation
that encompasses all methods of opinion dissemination. To rely on a
method that prefers the book over all other means of distribution is
to close our eyes to current reality.

Thank you for your consideration.

Leslie B. McGuire
Assistant Librarian, U.S. Courts
Library (10th Cir.)
4-520 U.S. Courthouse
333 W. 4th St.
Tulsa, OK 74103

Appellate Court and Circuit Administration Division
Administrative Office of the U.S. Courts
Thurgood Marshall Federal Judiciary Building
One Columbus Circle NE, Suite 4-512
Washington, DC 20544

Attention: ABA Citation Resolution

To Judicial Conference's Executive Committee, Committee on Automation
and Technology:

Dear Committee Members:

Pursuant to the February 20, 1997 memorandum on whether the
federal courts should adopt the form of official citation for court
decisions recommended by the ABA Special Committee on Citation
Issues, our office offers the following comments. At the present time
we have 19 trial attorneys and five appellate attorneys who prepare
and file district court and appellate court briefs.

There was uniformity among the staff in believing that the
resources going into determining the best electronic cite were not
well directed. The lack of uniformity has not caused such great
problems that the citation system needs to be changed. Under the
present system, the person with only electronic access can easily
find cases when given a regular citation to a printed case. On the
other hand, a person without electronic access of any kind will never
benefit from electronic citations, no matter the format.

The proposed solution calls for double cites to every case.
This is bound to be extra time consuming for everyone. It also leaves
less room for actual Argument when one is pressed for space under the
page limitations. It is assumed that every new case will be required
to have the paragraphs numbered in the printed version as well as the
electronic version. If this does not happen, then the failure to
require a citation to the relevant printed page would cause real
problems for anyone who researches at all in print.

Thank you for the opportunity to provide input on this issue.
Please feel free to call me if you would like further comments or
explanation.

Sincerely,

Ann Steinmetz,
Federal Public Defender
Albuquerque Office

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

Please let me know if further information is needed.

Sincerely yours,

J. D. Fleming, Jr.

STATEMENT OF J. D. FLEMING, JR.
TO THE JUDICIAL CONFERENCE OF THE UNITED STATES

THE ABA'S POLICY ON CITATION SYSTEMS
!EN
I am submitting these comments as an individual, not as a
representative of the American Bar Association or any other
organization. I served as chair of the former ABA Special Committee
on Citation Issues. The purpose for this submission is to summarize
the nature of the information collected and the process followed by
the Committee in developing the recommendation that the Association
adopted as its policy in August, 1996. I win also be glad to respond
to questions or to provide additional information if requested.

1. CREATION OF THE AMERICAN BAR ASSOCIATION SPECIAL COMMITTEE ON
CITATION ISSUES.

In recent years, growing numbers of court decisions have become
available through electronic publication soon after their release.
Current decisions of many courts may be obtained free or at a nominal
cost from databases maintained by law schools and the courts
themselves. Large collections of decisions are published by a number
of commercial vendors on computer discs, at a cost substantially less
than that of printed reports. A single small disk can hold as much
information as many volumes of printed reports.

The traditional method of citing to volume and page numbers in
printed reports cannot be used effectively for electronic reports
because the printed reports, and therefore the volume and page
numbers, typically are published weeks and often months after the
electronic reports. In an effort to develop citation methods that
work effectively both with books and with computer databases, a
number of jurisdictions are considering or have recently adopted new
citation systems. While there are similarities, these new systems
differ significantly among themselves.

At the 1995 Annual Meeting of the American Bar Association, the
Board of Governors created the Special Committee on Citation Issues
in an effort to help avoid a proliferation of varying citation
systems across the nation. The Board of Governors direction to the
Committee was:

"The Special Committee shall (1) evaluate citation issues,
inviting views from all ABA entities and organizations active in
fields related to legal citation; (b) develop recommendations
concerning a citation system which will be broadly acceptable to
the bar and to the courts; and (c) recommend action for
consideration by the Board of Governors and the House of
Delegates at the 1996 Annual Meeting."

Since the Committee was given only a year to complete its task,
the Board decided that it needed to be a small working group, but
that it should include a broad representation from the ABA sections
and divisions, the state bars, law schools, and the state and federal
judiciary. To achieve this objective, President Roberta Ramo
appointed the following members:

Robert W. Barger, Immediate Past Chair, ABA Section of Science
and Technology (New Jersey).

James E. Carbine, Co-chair, Trial Practice Committee, ABA
Section of Litigation (Maryland).

J. D. Fleming, Jr. (Chair), Former member of the ABA Board of
Governors and former Chair, Section of Science and Technology
(Georgia).

Professor Patricia B. Fry, Council Member, ABA Section of
Business Law (North Dakota).

Robert E. Hirshon, Chair Elect, ABA Tort and Insurance Practice
Section (Maine).

Judge Thomas S. Williams, Vice Chair, Court Management and
Administration Committee, ABA Judicial Administration Division
(Wisconsin).

Carolyn B. Witherspoon, President, Arkansas Bar Association
(Arkansas).

President Ramo also appointed liaison members to the Committee
from the following organizations who designated them:

Noel J. Augustyn, Administrative Office of the United States
Courts

Judge Danny J. Boggs, Judicial Conference of the United States

Lucian T. Pera, Board of Governors, American Bar Association

Rita T. Reusch, American Association of Law Libraries.

The liaison members participated fully in the activities of the
Committee and gave the Committee the benefit of their views and
advice, but did not vote on any proposals before the Committee.

In keeping with the policy of the ABA, each voting member of the
Committee executed a statement certifying the absence of any material
interest in the subject matter being studied by the Committee.
Because the liaison members did not vote, they were not asked to
submit a conflict statement.

2. THE ABA COMMITTEE'S STUDY.

In mid-October, 1995, the Committee sent notices of its
assignment to organizations and individuals interested in citation
issues and invited the submission of information and comments. From
the submissions that were received over the next month, the Committee
identified proponents of different views on the issues before the
Committee. The Committee invited eight entities and groups,
representing the entire spectrum of opinion, to make oral
presentations at a meeting in Chicago on December 8, 1995. General
argument of positions in these presentations was discouraged since
those arguments had already been offered in the written submissions.
Instead, the representatives were asked to respond to written
questions sent to them by the Committee and to additional questions
raised by the Committee during the meeting. A copy of the written
questions is attached as Exhibit A. The entities and groups invited,
all of whom accepted, were:
!NR
ABA Section of Intellectual Property Law
American Association of Legal Publishers
Association of Reporters of Judicial Decisions
State Bar of South Dakota
Taxpayer Assets Project
West Publishing Company
Wisconsin State Bar
!EN
Two members of the Wisconsin State Bar appeared, one
representing the state bar itself which had petitioned the Wisconsin
Supreme Court to adopt a generic citation approach, and one
representing the views of individual members who opposed the position
of the Wisconsin State Bar.

The December 8 meeting was very helpful to the Committee in
developing an understanding of the range of views on citation issues.
To expand this understanding, the Committee broadened its invitations
to submit comments and recommendations by individual contacts,
particularly with the judiciary, and by making widespread
distribution of an announcement of the Committee's activities and the
schedule for completion of its assignment. A copy of this public
announcement is attached as Exhibit B.

The Committee's notice was posted on the ABA Network on the
Internet and it was widely redistributed from that site by a number
of organizations and individuals interested in citation issues. Some
created links to the ABA Network site from their own sites and others
duplicated the notice and distributed it through newsgroups or the
mail. In January, 1996, the Committee sent memos and letters, with a
copy of the notice, to many additional organizations to invite the
submission of views and comments. The recipients of these additional
invitations included the chairs of all ABA sections; the chairs of
all ABA divisions; the presidents of all state bars; all members of
the Conference of Chief Justices, which is comprised of the chief
justices of all states; and the editors of the two leading citation
manuals, the Bluebook, published by the Harvard Law Review
Association, and the Maroonbook, published by the University of
Chicago Law Review.

Extensive written submissions were received by the Committee
from many sources. The Committee evaluated in detail all submissions
received through early March, 1996, and prepared a preliminary report
setting out its tentative conclusions and recommendations.

3. THE ABA COMMITTEE'S PRELIMINARY REPORT.

In mid-March, 1996, the Committee's preliminary report was
released for public comment, along with a notice that additional
comments and recommendations submitted by April 22 would be
considered by the Committee in formulating its final report and
recommendation. The preliminary report was posted in full text on the
ABA Network on the Internet and a copy was sent to every person and
entity who had submitted comments to the Committee, as well as to a
number of additional individuals and organizations, including the
Conference of State Court Administrators whose members are the
highest court administrators in their states. It was widely
republished on the Internet, and a number of legal newspapers and
reports printed summaries or the full text of the preliminary report.
Copies were sent by the Administrative Office of the United States
Courts to all chief judges of the United States Courts, all circuit
and district executives, all clerks, all circuit librarians, and
other administrative personnel.

The distribution of the preliminary report for public comment
produced a number of additional submissions to the Committee during
the next two months before its final report was completed. The
Committee reviewed and considered all information it received up to a
few days before its final report was released. While usually
advocating one view or another, most submissions to the Committee
outlined carefully the reasons for their contentions and data on
which the contentions were based, including copies or sources of the
data. The Committee was therefore able to evaluate the supporting
information for itself well enough to be confident of its conclusions
on most of the issues without requesting additional data or
undertaking any separate investigation.

4. THE COMMITTEE'S INVESTIGATION OF THE COST OF IMPLEMENTING A
PARAGRAPH NUMBERING SYSTEM.

There was one very significant exception to the almost uniform
availability of supporting data. Some official court reporters and
publishers of printed reports argued strongly that the use of a
medium neutral citation system based on paragraph numbers would be
technically impossible or at least would involve staggering costs,
ranging into the hundreds of thousands or even millions of dollars.
Some electronic publishers argued equally strongly that using such a
system would impose no burdens at all. Almost no specific information
was provided to the Committee to support either of these opposing
arguments. The Committee therefore found it necessary to gather
supplemental information concerning the feasibility of a medium
neutral citation system.

The path chosen by the Committee was to identify courts that had
already attempted to implement citation systems similar to those
being considered by the Committee. Two court systems were identified
that had substantial experience with providing sequential case and
paragraph numbers: Canada and South Dakota. Many courts in Canada
began using paragraph numbers by 1990 and the Supreme Court of Canada
has numbered paragraphs in its opinions since January of 1995.
Paragraph numbering in the opinions of the South Dakota courts began
in January of 1996 and in August of 1996, paragraph numbering was
begun in the federal district court decisions in South Dakota. The
Committee requested and received information from the personnel
involved in the implementation and operation of the paragraph
numbering system in these courts.

Paragraph numbering was begun in Canada with encouragement from
the publishers of printed reports. The use of paragraph numbers
offered a benefit to the publishers because the paragraph numbers
would be the same whether reports were published in French or in
English. With citation to page numbers, the printing of reports in
both languages was more complicated because identical page numbers
would not result simply from mechanical formatting of the text. The
Committee was told that publishers in Canada realized net cost
savings from the switch to paragraph numbering, and that no publisher
had complained about the change, including Carswell, the largest
Canadian publisher. Carswell is a subsidiary of Thomson Corporation
which is pursing a merger with West Publishing Co.

The experience with implementing the new citation system in the
Supreme Court of Canada and in South Dakota was quite similar.
Training the first secretary in using a word processing macro to
place paragraph numbers required only a few hours, and training each
additional secretary took less than an hour. The cost of implementing
this change was said to be modest, probably less than $2,000.

Though this information was not before the ABA Committee, it may
be of interest to note that the Maine Supreme Court has now adopted
and implemented the citation system recommended by the ABA. Maine's
experience with the implementation was very similar to that of the
Canadian and South Dakota courts reported above. Maine estimates the
typical cost of implementing the new citation system to be below
$5,000 including the equipment to prepare the decisions to be made
available through the Internet, but its own costs were somewhat lower
because it used equipment already on hand instead of purchasing new
equipment. The time required to train the secretaries to use the
paragraph numbering macro was less than 10 minutes for each. Maine
uses Macintosh computers.

The Maine, South Dakota, and Supreme Court of Canada decisions
are published on the Internet. Currently, the Internet addresses are:
!NR
Maine --
http:www.courts.state.me.us/mescopin.home.html

South Dakota --
http://www.sdbar.org/

Supreme Court of Canada --
http://info.ic.gc.ca/opengov/supreme.court/sc.home.html
!EN
Paragraph numbering appears in the reports on these sites. In
addition, West Publishing Co. now routinely publishes the South
Dakota state court opinions in the N.W. 2d reporter, complete with
paragraph numbers. Both Lexis and Westlaw include the paragraph
numbers in their on-line reports. No difficulty with publishing any
of these reports has been reported to my knowledge.

5. BRIEF COMMENTS ON THE ASSIGNMENT OF SEQUENTIAL CASE NUMBERS.

The Committee gave less attention to the mechanics of assigning
sequential decision numbers. From time to time, the issue was
mentioned, but it was approached as a matter of administrative
inconvenience that would need to be worked out, and not as a ground
for significant objection to a medium neutral system. The Committee
thus did not comment on this issue in its report. Some information,
however, was gathered on this point.

State court personnel did not seem to view the assignment of
sequential decision numbers to be a significant problem. Decisions in
these courts are usually prepared by a few secretaries and obtaining
a number by telephone or email from a clerk was thought to be a
reasonable solution.

In the federal courts and a few states, units of a single
reporting court are in scattered locations and some courts involve a
large number of units. These systems may require a more automated
method of assigning sequential decision numbers. Several approaches
were suggested to the Committee to respond to this need, and three
seemed to be quite workable.

The first solution would use manual assignment, but at a point
in the process after the responsible judge decides that the decision
is ready to be released. Until the decision is released to the
public, the sequential number is not needed, and the court win
probably handle the decision using the docket number in any event.
[The Committee concluded that the use of docket numbers for the
medium neutral citation would be unsatisfactory. Final Report,
paragraph 24. When the court releases the decision, a copy is
normally mailed to the parties. Many courts currently release the
decision to the public either on computer discs, email, or computer
bulletin boards at or shortly after the time it is mailed to the
parties. In some courts, hard copies become available to the public
when the decision is entered by the clerk. As a practical matter,
this release determines the earliest point at which the sequential
case number needs to be assigned because the case will not be cited
prior to its release to the public. Since the release to the public
will usually be handled by one, or at least very few, of the court's
computer personnel or clerks, the manual assignment of the case
number and the editing of the computer file to add it at the time of
release is likely to be practical.

The second promising method suggested to the Committee by court
administrative personnel involves automated case number assignment.
Many, perhaps most, of the larger court systems now maintain computer
bulletin boards, such as those in the federal PACER system, and it is
likely that all courts will have these systems soon. The Committee
was told that all of these bulletin boards are accessed through
passwords, and that it would be simple to have a small section of the
bulletin board accessible only to authorized court personnel who
prepare the final decisions for the court. This section of the
bulletin board would display a screen on which the user would type in
the docket numbers of the cases for which sequential decision numbers
are needed. When the user enters the key to exit the system, the
computer would instantly assign decision numbers, increment the
stored next decision variable to the next available decision number,
output the list of docket and decision numbers to the user, and
record the list and the user number in a simple database. If multiple
accesses are sought at the same time, the computer would queue them
and process them sequentially. Since the computer transaction is
extremely simple, the delay time for any user would be quite brief.
The programming required for this system was described to the
Committee as being elementary.

The third method suggested to the Committee is more automated.
This method would employ a remote terminal at the desk of each person
who prepares final decisions. The terminal could be a less complex
version of the card terminals now used universally by commercial
establishments around the country to clear credit card transactions
through American Express, VISA, and other data processing facilities.
When the decision is ready to be released, the terminal would be
activated in order to contact a central computer by phone or a
network, and the computer would send the next sequential number to be
printed or displayed on the terminal, or fed to the user's word
processor to be inserted into the decision file. The Committee was
told that knowledgeable technical personnel in judicial
administration offices consider this approach to be entirely
feasible.

6. FILING AND SPONSORSHIP OF THE ABA COMMITTEE'S REPORT AND
RECOMMENDATION.

The final report and recommendation of the ABA Committee were
filed with the ABA House of Delegates as required on May 24, 1996,
and it was docketed as Report No. 107. Additional comments and
information were received up to the time the House of Delegates
opened debate on Report No. 107 on August 7, 1996. All of this
information was reviewed and considered by the floor delegation
presenting the report before the House.

After Report No. 107 was filed with the House, several ABA-
related organizations elected to join as co-sponsors. The co-sponsors
of the report, in addition to the Committee, were:
!NR
Atlanta Bar Association
Coordinating Commission on Legal Technology
Litigation Section
Massachusetts Bar Association
Milwaukee Bar Association
Section of Science and Technology
State Bar of South Dakota
State Bar of Wisconsin
Tort and Insurance Practice Section.
!EN
7. CONSIDERATION OF REPORT NO. 107 BY THE ABA HOUSE OF DELEGATES.

During the floor debate on Report No. 107, the proponents were
representatives of the co-sponsoring organizations. The only
organization which spoke in opposition to the adoption of the
recommendation was the ABA Section of Intellectual Property Law. The
Conference of Chief Justices moved to postpone action indefinitely,
but did not oppose the recommendation. These two efforts are
discussed briefly in the following paragraphs.

The Section of Intellectual Property Law endorsed the
recommendation of the adoption of a medium neutral citation system
but urged that the new system be an optional alternative to the
traditional methods of citation and that disclosure of the actual
source used by the writer be required. The proponents of Report No.
107 opposed these recommendations for change on the ground that
uniformity requires a single citation system, not optional
alternative systems, and that requiring citation of the specific
publisher would encumber legal citation without any corresponding
benefit.

A resolution, a copy of which is attached as Exhibit C,
concerning Report No. 107 was proposed by the Conference of Chief
Justices Committee on ABA Citation Issues (hereinafter the "COCJ
Committee"), composed of five state chief justices, and the
Conference adopted the resolution on August 1, 1996. The Conference
resolved that the state courts should plan to establish an improved
citation system effective for both electronic and print publications.
The resolution also criticized the ABA citation committee on the
ground that "the ABA committee study did not include or involve
consultation with the Conference of Chief Justices prior to the
issuance of that report" [the report being considered by the ABA at
its August, 1996, meeting] and stated that "the report of the
committee inadequately addresses the perceived problems." This was
the ground for the motion by the Conference of Chief Justices to
postpone consideration of Report No. 107 by the House of Delegates.

I spoke in opposition to the motion of the Conference of Chief
Justices, summarizing the following previous contacts with the chief
justices which we had described in correspondence with the COCJ
Committee on April 1 and July 18, 1996, and in several telephone
conversations. (1) A chief justice who later became a member of the
COCJ Committee was advised of the assignment of the Committee in
August, 1995, as an officer of an ABA organization which was being
asked to recommend a member. (2) Members of the Committee contacted
their own chief justices concerning the Committee's work. (3) The
Committee wrote every chief justice on January 26, 1996, describing
the Committee's assignment and inviting the "submission of comments
and recommendations on citation issues . . . . " A copy of the
memorandum is attached as Exhibit D. Responses were received by the
Committee from and on behalf of some chief justices. (4) Beginning on
April 1, 1996, after the release of the Committee's preliminary
report for comment and three weeks before the time by which comments
were requested, the ABA Committee wrote the COCJ Committee, sent
information it had collected, and spoke with the COCJ Committee
several times by telephone. The ABA Committee wrote four letters in
which it asked to meet with members of the COCJ Committee in person
or by telephone. No responses were received to these letters. In the
more than four months the ABA Committee and the COCJ Committee
corresponded before the floor debate on Report No. 107, no
substantive comments were received from the COCJ on the ABA
Committee's preliminary or final reports. For these reasons, I
contended that the Conference of Chief Justices had notice of the ABA
Committee's assignment and a meaningful opportunity to participate in
the development of the Committee's recommendations.

Following debate, the House of Delegates defeated the COCJ
motion to postpone action by a vote of approximately 2 to 1. The
House then voted on the adoption of Report No. 107, and the report
was adopted as the policy of the American Bar Association by the
affirmative vote of about 85% of the House.

8. CONSIDERATION OF THE ABA CITATION POLICY BY OTHER ENTITIES.

I have not followed actively the instances in which courts and
other entities have given attention to the ABA Citation Policy, and
can only report those that I have run across in casual reading.

The recently released 16th edition of the Bluebook, published by
the Harvard Law Review Association, provides a citation method in new
Rule 10.3.1 that is substantially the same as that called for by the
ABA Policy.

As previously noted, the Supreme Court of Maine has adopted the
system called for by the ABA Policy and is currently using that
system in its reports. Several state bar associations have begun
procedures to recommend the adoption of the ABA Citation Policy by
their courts. I am informed that these include Arkansas, New Jersey,
and Tennessee.

Additional information about the ABA citation policy can be
obtained through the Internet by accessing the home page of the ABA
Network at http://www.abanet.org/, then selecting the "Entities"
button, then the "Citation Issues, Special Committee on" button.
Among the material that can be found through the ABA Network in this
manner is an excellent background summary of the development of
medium neutral citation systems. "Freeing the Law: Case Reporter
Copyright and the Universal Citation System," 24 Fla. St. U. L Rev.
217 (1996). This article is also a superb example of some of the
advantages electronic publishing can offer in legal research because
it contains links permitting the reader to jump quickly between the
text and a footnote referred to in the text, and links giving direct
access to a number of statutes, rules, reports, articles, and cases
cited in the footnotes.
!NR
March 14, 1997

J. D. Fleming, Jr.
404/853-8062
FAX 404/853-8806
Email jdfleming@sablaw.com

MEMORANDUM

TO: State Chief Justices

FROM: ABA Special Committee on Citation Issues

RE: Invitation to Submit Comments

At the annual meeting of the American Bar Association in August,
1995, the Board of Governors created a Special Committee on Citation
Issues. The work of this committee is described in the attached
summary.

The committee is inviting the submission of comments and
recommendations on citation issues from all interested entities. We
welcome submissions from the judiciary.

J.D. Fleming, Jr.
Chair

EXHIBIT D

CONFERENCE OF CHIEF JUSTICES

RESOLUTION IX

Development by the Conference of Protocols for
Citation Systems

WHEREAS, the state courts in each state have the primary
responsibility to determine the manner in which they will publish and
disseminate the official opinions of each of their courts; and

WHEREAS, the publication of such opinions must reflect
technological change so that the public and legal community can be
afforded fair access to such opinions; and

WHEREAS, the American Bar Association has undertaken to adopt
recommendations for uniform citation conventions after a study and
recommendation by an ABA committee; and

WHEREAS, the ABA study did not include or involve consultation
with the Conference of Chief Justices prior to the issuance of that
committee report; and

WHEREAS, the report of the committee inadequately addresses the
perceived problems;

NOW, THEREFORE, BE IT RESOLVED that:

* it is appropriate for state courts to plan for improvements in
state citation systems that will recognize the importance of the
electronic media and establish a level playing field between print
and electronic reporting of state court decisions;

* it is premature to adopt any particular plan for change in
prevailing citation systems before the Conference has further
opportunity to obtain reliable answers about the manner in which any
changed system would operate and the costs that such a changed system
would entail;

* the Conference should undertake its own study, assisted by the
National Center for State Courts, to consider various ways of
adapting to electronic dissemination of state court opinions with a
view toward developing a series of protocols that might provide an
acceptable national and uniform model for each of the state courts to
consider, adopt or modify in light of the needs of the courts of that
particular state.

EXHIBIT C

Proposed by the Committee on ABA Citation Issues and the Board
of Directors of the Conference of Chief Justices in Nashville,
Tennessee, at the Forty-eighth Annual Meeting, on August 1, 1996.

Subject: ABA Citation Resolution

Time: 9:33 AM

Date: 3/14/97

I would like to take this opportunity to encourage the
Administrative Office of the United States Courts to adopt the form
of official citation recommended by the American Bar Association. As
a member of the ABA Special Committee on Citation, I studied the need
for medium neutral citations and the costs of such a decision. I am
convinced of the following:

1. It is essential for the courts to adopt citation protocols
which are medium neutral. There can be no question that the courts
and those who use them must be able to use non-paper-based research
materials as freely as they now use paper-based research materials.
Yet existing citation conventions, i.e. systems such as that
described in the Harvard Blue Book, are useful only for paper-based
systems. The ABA resolution recommends a citation convention which is
medium neutral. [It is akin to the chapter and verse system used for
citation to Biblical references -- a citation system adapted both to
the scrolls used for centuries and the bound volumes which came into
use after the printing press. As was true in the era of scrolls, it
is true in the emerging era of non-paper-based reference materials
that book and page references are not only awkward, they do not
permit accurate citation.]

2. The citation method should refer to the original source, the
opinion of the court which rendered it, and pinpoint citations should
be to the paragraph of the opinion. Both are more accurate than the
paper-based system of citing to book and page.

3. The system recommended by the ABA is useful to those who will
continue to use paper-based systems and thus minimizes any necessity
of forcing anyone to adapt to the new citation systems. It
permits natural evolution rather than imposed revolution.

4. The ABA recommendations do not impose unreasonable costs on
the paper-based publishers but do permit entry into the field of
publishing legal publications by non-paper-based publishers, thus
increasing competition.

5. The costs of adapting judicial resources to the new system
are relatively minimal, both in terms of training and of equipment.
Reports on the costs experienced in courts which have adopted medium-
neutral citations indicate they are minimal. The creation or
purchase of paragraph numbering software, and a relatively brief
period of training for some clerks, appear to be the primary costs.
Informal conversations with the chief clerk of the North Dakota
Supreme Court, for example, indicate that the transition was fairly
painless and simple. Informal conversations with the members of the
North Dakota Supreme Court, both those which will use books
throughout their careers and those dwho have used electronic
materials, indicates they have found the new system useful and
beneficial.

6. Adoption of medium neutral citation systems is extremely
beneficial to members of the legal profession. It has become
impossible for most law firms, whether of medium or small size or in
medium to