Back to HyperLaw Home Page

Back to Judicial Conference Comments Page

HyperLaw, Inc.

Fourth Circuit Comments to Judicial Conference re Citation Reform -- March/April 1997

Following is the survey sent to Federal Court Judges and Magistrates by the Administrative Office and Automation Committee of the Judicial Conference and the responses received from judges in the Fourth circuit. These responses, for all circuits, are also available in RTF format. In addition, individual letters were sent by certain judges. These may be found on the Judicial Conference Comments Page.

The comments have been excerpted for the Fourth Circuit. The Fourth Circuit includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

The Chief Judge of the Fourth Circuit is [note information as to judges is current as of 1996]:

Sam J. Ervin, Chief Judge United States Court of Appeals for the Fourth Circuit
One Northsquare
Morgantown, NC 28655

The Clerk for the Fourth Circuit is:
Bert Montague, Clerk
U.S. Courthouse Annex
1100 Main Street
Richmond, VA 23219

See, critical comments re survey by Judge Leif M. Clark, U.S. Bankruptcy Judge, Western District of Texas, San Antonio, Texas:

"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 myriad 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."

To make your views known as to judges who have made anonymous comments, one could communicate with the Chief Judge of the Circuit wherein the judge sits. The Chief Judge is also one of the twenty-seven members of the Judicial Conference which will decide whether to adopt the ABA Proposal at the semi-annual meeting of the Judicial Conference in September, 1997.

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 fin opinion so that there may be Pinpoint citations in which no private sector company can have a copyright.

SUMMARY OF FEDERAL JUDGES SURVEY ON ADOPTION OF THE ABA CITATION RESOLUTION - FOURTH CIRCUIT ONLY

Legends
Judge Type - Cir = Circuit Dist = District Bank = Bankruptcy
Mag = Magistrate CFC = Court of Federal Claims CIT = Court of International Trade

Individual Responses:

In addition to the survey responses, some in the Fourth Circuit wrote individual letters as follows:

[Comment #5]

TO:   Appellate Court and Circuit Court Admin. Div., A.O. U.S. Courts 
 
FROM: Norman H. Meyer, Jr., Clerk of Court, E. District of Virginia 
 
RE:   Comments on ABA Resolution on Citations 
 
     I have reviewed the proposed uniform citation system 
contemplated by the ABA resolution, and I have a significant concern 
regarding the logistics of implementing this system in a large 
federal trial court such as the Eastern District of Virginia. 
 
     Each court using this system will have to sequentially number 
"each decision at the time it is made available to the public." This 
court, as is the case with most federal courts, has multiple 
geographic divisions. We have four divisions spread across cities 200 
miles apart with over twenty judicial officers, each issuing many 
decisions and opinions on a regular basis. I am concerned about how 
this court, and in particular my office, can effectively implement a 
sequential numbering system with the judges. 
 
     If the proposed system is restricted to solely the "published" 
opinions of the court, the problem exists but is probably manageable, 
albeit with an additional layer of work for the court. In 1995 we had 
182 opinions published in F.Supp., and in 1996 there were 143. The 
problem becomes enormous, however, if the definition of opinions 
includes the thousands of opinions we issue that are "unpublished" 
The daily management of the checking and assigning of sequential 
numbers on a district-wide basis is an additional workload burden on 
judicial staff and the Clerk's Office that I do not see an easy 
solution to at this time. Ultimately an automated system may be 
possible, but I do not see one available now. In any case, what would 
be the real purpose or advantage of including these opinions, most of 
which are very brief and only of value to their cases, in a national 
citation system? 
 
     I have checked with the ABA, and in particular with J.D. Fleming 
who chaired the ABA special committee on Citation Issues, to see if 
the intent of the resolution and proposed system is to include 
unpublished trial court opinions. Mr. Fleming informed me that it was 
his opinion that the system contemplates having courts decide this 
question locally, numbering unpublished opinions in the system 
voluntarily. He stated that those courts which have already adopted 
the system are numbering all opinions in a common numbering sequence, 
adding a suffix of "(U)" to the citation to denote those not intended 
for precedential purposes. Thus if the system is adopted, we may be 
able to minimize the problem I raise by local choice -- I certainly 
hope so and advocate this be explicitly spelled out. My clear 
preference, though, is to have the system, if adopted, clearly 
exclude trial court unpublished opinions. 
 
     Thank you for this opportunity to comment on the ABA resolution. 
 
     If there is any question about this message, please do not 
hesitate to contact me via e-mail or by my phone at 703-299-2177 in 
Alexandria. 

                                   Norman Meyer 
                                   Clerk of Court 
                                   E. District of Virginia 

[Comment #6]

                    March 5, 1997 
 
Appellate Court and Circuit Administration Division 
ATTN: ABA Citation Resolution 
Suite 4-512 
Administrative Office of the U.S. Courts 
Washington, DC 20544 
Attention: Ms. Joan Countryman 
 
Dear Ms. Countryman: 
 
     I am strongly opposed to adopting the ABA's official citation 
form for several reasons. On a philosophical level, efforts to 
homogenize the federal courts of this nation are shortsighted. 
Diversity among our federal courts encourages experimentation and 
progress and is one of the reasons the federal judiciary has remained 
so dynamic. 
 
     Second, it is highly inappropriate for a group outside the 
judicial branch to suggest that judges conform their work to certain 
standards. To my knowledge, no federal judge is required to follow 
any particular form for his or her opinions. Some judges value 
brevity; some use literary flourishes; some include many footnotes, 
others use few; some follow Blue Book format, others do not; some 
only cite to the official source, and others include parallel cites. 
To mandate that judicial opinions conform to a specific format, such 
as numbering every paragraph and including parallel cites to 
electronic publications, seriously invades judicial independence. 
 
     On a practical level, asking the district courts to number 
sequentially each "published" opinion will impose a significant 
burden on both chambers and clerk's office staff. In larger, multi-
division courts, such as the Eastern District of Virginia, some 
method for coordinating this sequential numbering will be necessary 
assuming that decisions are reported by district as they presently 
are. Will my secretary have to call a coordinator clerk who keeps 
track of each opinion issued by all judges in this district or dial 
into a special sequencing program to get a number for each opinion I 
publish before I send it out? Without intra-district networking, such 
coordination is unrealistic and unreliable. And how do my law clerks 
get these "parallel electronic cites"? Will Westlaw include them or 
are we back to some kind of Shepardizing? 
 
     I understand that part of the impetus behind the ABA proposal is 
a concern about the proprietary way in which private, profit-making 
ventures, such as West Publishing Company, copyright their 
publication of our opinions. The belief is that our opinions belong 
to the public and should be readily available to all persons without 
having to pay fees to private vendors of that information. The 
traditionally invaluable service these private publishers have 
provided has been to organize and catalog judicial opinions into a 
reliable and accessible format. The Internet, of course, seriously 
challenges the old way of doing things and opens up the possibility 
that if the courts would do what private enterprise has been doing, 
then everyone in the world could have immediate, inexpensive access 
to judicial opinions. 
 
     However, given the trend towards out sourcing governmental 
functions (of which the commercial publication of judicial opinions 
is a fine example) and significant budgetary limits on the federal 
judiciary, the ABA proposal presents an unnecessary financial burden. 
To implement this proposal would require either some allocation of 
scarce personnel resources or installation of technology which we do 
not have at this time and which is expensive. Although the concerns 
surrounding the ABA proposal have merit, I believe the solutions may 
lie elsewhere. Therefore, I recommend that the ABA shift its focus 
from the judiciary and work for changes within the private sector to 
accomplish the goal of inexpensive, universal access to judicial 
opinions. 

                                   Very truly yours, 
 
                                   Leonie M. Brinkema 
                                   United States District Judge 


[Comment #7]
                              March 13, 1997

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 [US District Ct. Judge E.D. Va.]

[Comment #8]
                                   March 10, 1997

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 [E.D. Va.]

[Comment #9]
                                   Michael R. Seidl, Ph.D. J.D.
                                   851 North Van Dorn Street
                                   Alexandria, VA 22304
                                   mseidl@nicom.com

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,