Archive for the ‘Cases’ Category

Oklahoma’s Court Network Threatened by Legislative Proposal

Friday, May 29th, 2015

In 2014 this blog reported on the decision by Oklahoma’s Supreme Court that the electronic versions of state appellate decisions published on the Oklahoma Supreme Court Network (OSCN) would replace those printed in the National Reporter System as “official”.  A budget crisis brought on by declining oil revenues now places that critical publication channel in jeopardy.  A proposal before the legislature would divert nearly all the dedicated fees on which OSCN depends to other uses.

New Mexico’s Mandate That Medium-Neutral Citations Be Used for Cases Originally Issued without Them

Wednesday, May 20th, 2015

New Mexico’s Unique Citation Rule

Since August 1, 2013 briefs, memoranda, and other papers filed with New Mexico’s courts have been required to use a system of medium-neutral case citation for all New Mexico appellate decisions. That citation system, similar although not identical to the model recommended by the American Bar Association and American Association of Law Libraries, was first implemented by the New Mexico Supreme Court in 1996. Pierce v. State, released for publication on January 4th of that year, was designated “1996-NMSC-001”. The first decision of the state’s court of appeals in 1996, State v. Gutierrez, carried the citation “1996-NMCA-001”. Both were issued with numbered paragraphs. Simultaneously issued citation rules required filings in New Mexico courts to cite those decisions and subsequent ones using their medium-neutral citations.

What is unprecedented about the 2013 amendment to those rules is that it requires that New Mexico’s print-independent citation system be used for all pre-1996 decisions reaching back to 1852. No other state has taken this step. Shortly after Oklahoma implemented medium-neutral citation in 1997, it retrofitted all prior reported decisions. But that state’s citation rule, then and now, simply provides that parallel citations employing the print-independent scheme are “strongly encouraged for opinions promulgated prior to May 1, 1997“.

Some Background

The New Mexico Compilation Commission began as an agency responsible for producing a full compilation of the state’s statutes, hence its name. In 1982, however, the commission was  given additional responsibility — publication of the New Mexico Reports. In 2004 it was declared to be the state’s official legal publisher. In 2011 the commission ended print publication of the New Mexico Reports, and the state’s supreme court designated the authenticated electronic files of decisions at the Compilation Commission web site their final, official version.  And in 2012 the Commission’s database of electronic decision files, each with a medium-neutral designation  (e.g., “1982-NMCA-051”) and paragraph numbering, was extended all the way back to Bray v. United States, 1852-NMSC-001.

Today, the Compilation Commission offers legal professionals and state offices the compiled statutes of New Mexico in both print and electronic format.  Combined with the state’s case law, court rules, decisions of the regional federal courts, and other material, the commission’s integrated DVD and online database serve state and local government offices and compete with the commercial research services in the legal information market.  Because of an attractive subscription price (roughly $60 a month for the general public, less for state and local government agencies), official status, and a growing list of features (most recently a limited citator service for its case reports) these services, known as NMONESOURCE, do, in fact, offer serious competition.

The principal drawback of the Compilation Commission’s database for legal professionals is its tight focus on New Mexico.  With some frequency the state’s judges and lawyers need access to federal case law, statutes, and regulations.  On occasion, they must consult decisions from other states.  Although the Compilation Commission’s electronic library includes a collection of the most useful federal decisions and serves as a portal, linking to Google Scholar for the case law of other states and U.S. government sites for the Federal Register and Code of Federal Regulations, it falls short of providing a full range of non-New Mexico primary legal material.  At a minimum the users of NMONESOURCE must, from time to time, turn to some other research service.   Convenience may lead them to stay or even start out elsewhere.  The default “other service” for New Mexico’s lawyers is Fastcase, available as a membership service to all members of the bar.   For the state’s judges it is Westlaw, to which all of them, from the district courts  through the state supreme court, have access under a group Westlaw subscription.

Consequences to Date

Compliance by Judges, Lawyers, and Law Students

Current decisions of the appellate courts of New Mexico model the citation format the 2013 rule requires of lawyers.  While that rule does not require parallel print-based citations for state decisions dated after the cutoff for the final volume of the New Mexico Reports, judges continue to include parallel references to the Pacific Reporter of the Thomson Reuters National Reporter System.   As the rule directs, however, their pinpoint references employ the paragraph numbers of the medium-neutral format.  Review of a small sample of briefs filed in recent New Mexico appeals leaves little doubt that the system has also taken hold among lawyers.  Student editors of the New Mexico Law Review employ the new citation method in their writing.

Take Up by Major Law Databases

To comply with the 2013 citation rule, the judge, lawyer, or law student needs access to a database that has retrofitted its collection of New Mexico’s pre-1996 decisions with medium-neutral case identifiers and paragraph numbers.  A database search on “contract breach” may lead a researcher to the 1959 decision of the New Mexico Supreme Court in Wolf v. Perry or the 1993 case, Mark V, Inc. v. Mellekas.  When first published and for years thereafter the volume and page numbers of those two decisions in the New Mexico Reports and Pacific Reporter would have provided proper citations.  Indeed, they had none other.  But as of August 1, 2013, Wolf v. Perry is to be cited as “1959-NMSC-044”; Mark V, Inc., as “1993-NMSC-001”.  While a search on Bloomberg Law, Google Scholar, or Fastcase will take you to those cases, none of those services yet delivers their neutral citations, let alone the paragraph numbering needed to direct a reader to a specific passage.

Does this place the subscription service offered by the New Mexico Compilation Commission in a unique competitive position?  No.  The same search conducted on LexisNexis or Westlaw reveals that those services have followed the commission’s lead and added neutral cites and paragraph numbers to all pre-1996 New Mexico cases.  Other research services serious about the New Mexico market will, no doubt, do the same.  No license from the state is required.  Despite the copyright notices that appear throughout the Compilation Commission site, New Mexico could not and does not claim copyright in either the case citations or paragraph numbers.

In the meantime, researchers who wish to cite pre-1996 cases identified through use of a database that has not inserted the new citation parameters can obtain them, case-by-case, from open access resources offered by the Compilation Commission.  The commission’s web site holds tables that allow one to convert any pre-2013 official cite (“65 N.M. 457” or “114 N.M. 778”, say) to the new system (“1959-NMSC-004” and “1993-NMSC-001”, respectively).  The site also provides, as a free public resource, a comprehensive case law collection reformatted in accordance with the new standard.  From it one can draw the paragraph numbers the new rule calls for in pinpoint cites.  Furthermore, because the commission’s site is open to external search engines it is possible to bypass the lookup tables and go straight to the decision one wants to cite.  A Google search on “114 N.M. 778” or “845 P.2d 1232” limited to the commission’s site will lead directly to the medium-neutral version of Mark V, Inc. v. Mellekas as well as recent cases citing that decision.  In fact, because the site is open to external search engines the initial case research need not begin elsewhere.

Lack of Reinforcement in NMSA and Most Other Annotations

As the state’s official publisher the New Mexico Compilation Commission also publishes the New Mexico Statutes Annotated and the New Mexico Rules Annotated.  Both are included in electronic form as components of its online and disc products.  They are also sold in print.  In neither have annotations to pre-1996 decisions yet been conformed to the new rule.  An annotation’s reference to a 1994 case will still cite it as  “In re Cutter, 118 N.M. 152, 879 P.2d 784 (1994)” rather than “In re Cutter, 1994-NMSC-086, 118 N.M. 152″.  So long as a researcher is working from the DVD or online version the annotation’s obsolete format is not a problem for the cites are linked to copies of the opinions, which carry the now official neutral citations and paragraph numbers.  On the other hand, since programmatic conversion of the old-form citations should be fairly straightforward there is reason to expect that it will occur before long.

The annotations that appear in Michie’s Annotated Statutes of New Mexico, as published online by LexisNexis, do contain cites that conform to the new rule.  Those in West’s New Mexico Statutes Annotated and in the Fastcase annotations to the New Mexico Statutes, as yet, do not.

Effects Limited to New Mexico

Many decisions of the U.S. District Court for New Mexico do employ the state’s medium-neutral citation scheme when citing its courts’ post-1996 decisions.  Not all do, however, and there is little evidence to date that federal judges will be induced to cite older New Mexico decisions in accordance with the 2013 rule.  When decisions from New Mexico, contemporary or older, are cited in other states, even states with their own systems of neutral citation, they are, almost invariably, cited by volume and page number.

A Model for Other States?

Oklahoma is the only other state to apply a non-proprietary medium-neutral citation scheme retrospectively to its full body of case law.  There, nearly two decades of “strong encouragement” to use the system in citing older decisions has had a pervasive effect on in-state citation practice.  In Oklahoma, like New Mexico, the policy was undergirded by creation of a comprehensive database of state law open to judges, other public officials, lawyers, and members of the general public — an initiative explicitly aimed at loosening dependence on commercial systems.

The barriers inhibiting prospective adoption of any new citation approach are sufficiently daunting and the costs of creating the necessary supporting database large enough that all other states adopting medium-neutral schemes have been content to leave their print-era case law wrapped in print-era citations.  Two of them, Arkansas and North Dakota, have done so despite having created public databases of earlier appellate decisions.  So long as the boundary between old and new is distinct this seems a totally defensible approach.  How a Illinois judge or lawyer should cite decisions of that state’s courts rests very clearly on when the decisions were filed.  Those released prior to July 1, 2011 and published in the Illinois Official Reports must be cited by volume and page number.  Decisions filed on or after July 1, 2011 with a “public-domain citation” must be cited using it.

What reasons might have led New Mexico to take a more radical approach to citation reform?  The first is that it could.  Without a full retrospective case law collection the publications and legal research services of the New Mexico Compilation Commission were seriously incomplete, including importantly its flagship New Mexico Statutes Annotated.  Assuming that construction of such a comprehensive digital archive had to be undertaken, the attachment of non-print-based citations in the same format as those that judges and lawyers had used for post-1996 cases may have seemed a modest add-on.  Moreover, the rule change could be seen as placing NMONESOURCE, the Compilation Commission’s subscription service, in a uniquely authoritative position.  Set up as an “enterprise unit” funded out of sales and subscription revenue along with a dedicated portion of court filing fees, the commission was in need of a resource boost.  As the annual report of the New Mexico judiciary for fiscal year 2013 noted:

The challenges facing the [commission] are the increases in publishing costs while revenue declined for the second year in a row. There is a significant loss in civil action filing fees due to the decrease in civil actions filed. There is strained subscription revenue stemming from the economy overall and the increase in self-represented litigants who elect to file civil actions and appear in court without legal counsel. Lawyers are forced to make difficult decisions to postpone subscribing to the official laws in favor of the limited, unannotated laws on the public access site.

However, since that same public access site provides a complete set of New Mexico decisions as well as look-up tables matching volume and page number cites with their medium-neutral equivalents and the leading commercial database services have rapidly incorporated the new cites, the 2013 rule change may not, in the end, have a significant effect on NMONESOURCE subscription revenue.

No other U.S. jurisdiction has an agency with the broad charge and challenging duties of New Mexico’s Compilation Commission or today has the initiative, incentive, or resources within the judiciary to create a database like the one Oklahoma established years ago.  For that reason it seems unlikely that the path New Mexico and Oklahoma have blazed will be followed by others anytime soon.

 

The Complex Relationship between Citations and Citators

Wednesday, April 29th, 2015

Shepard’s Citations

In 1873, Frank Shepard began compiling and selling lists of citations to Illinois decisions printed on gummed paper (Shepard’s System of Adhesive Citations).  Purchasers pasted them into the margins of their bound case reports.  Shepard’s lists linked each reported case to any subsequent reported decision that referred to it.  When gummed addenda proved too cumbersome a tool (even more troublesome to maintain than looseleaf volumes), Shepard’s Citations moved to separate volumes.  These were books of citations designed to stand beside law reports – volumes that simply pointed from one book to others by means of citation.

Shepards

For over a century law students, lawyers, and judges conducted forward citation searches on key decisions using the Shepard’s publications.  So tight was the association that the process became known as “Shepardizing”.  One “Shepardized” a case to assure it had not be overruled by a higher court, to determine its status and range of interpretation within the jurisdiction of origin, to see how it had been treated elsewhere.

Cases and Citators Go Digital

Once electronic databases were central to case research, their incorporation of a citator function became essential.  The value of providing the digital equivalent of Shepard’s gummed list proximate to every retrieved opinion was obvious. And in a hypertext environment that list of citing cases could itself offer point and click access to each one of them.  Moreover, once held in a database the entries could be filtered and sorted.  Today, all case law database services of professional quality offer retrieval of subsequent citing cases as an option adjacent to each opinion.  Some not only list the citing cases but analyze and characterize those references as the Shepard’s print publications once did.

As electronic case law collections evolved, however, they posed fresh challenges for these companion citators.  Increasingly the leading online databases added decisions that the Shepard’s lists had ignored, cases without standard print citations.  These included opinions that would never be published in print, either because of court designation or publisher discretion, as well as “slip” versions of those whose publication was anticipated but had not yet occurred.  Generally unexamined is the extent to which the relative performance of today’s online citators is affected by how they deal with citations in and citations to opinions falling in these two categories.  That performance varies considerably.  Researchers who assume complete results are, with some services, likely to miss important cases.  Those who know the limitations of the citator on which they rely can, when necessary, augment its results with their own database search.

The Citator Challenges Posed by Unpublished Decisions

Citations to Not Yet Published Decisions

Because of their high volume Social Security cases provide a particularly clear illustration of the problem posed by the delayed application of citation parameters and the range of responses to it by the citators now embedded in the major online services.  As of April 23 five “precedential” decisions in cases appealing a denial of benefits by the Social Security Administration had been released by the Seventh Circuit U.S. Court of Appeals since the beginning of 2015.  (Decisions the Court does not deem significant to other cases it labels “Nonprecedential” and withholds from publication in the Thomson Reuters Federal Reporter series.)  “Four of the five were written by Judge Richard Posner.  Three of his decisions and one by Judge Daniel Manion reversed trial court decisions that had affirmed the agency’s benefit denial.

From the moment of release, the potential ripple effect of opinions like these is substantial, throughout the district courts falling within the Seventh Circuit and beyond.  Consider the numbers.  During the twelve months ending June 30, 2014, those districts received 1,441 Social Security appeals.  Within weeks, in some cases days, the five 2015 Court of Appeals decisions were being cited.  Curvin v. Colvin, No. 13-3622 (7th Cir. Feb. 11, 2015), the earliest of the set, has now been cited at least 12 times.  (A pro-claimant Social Security decision of the Seventh Circuit handed down a little over a year ago  – Moore v. Colvin, 743 F.3d 1118 (7th Cir. 2014) –  has been cited over 125 times, at least twice outside the circuit.)

Curvin illustrates the difficulty faced by anyone or any system attempting to track these citing references.  The decision was handed down on February 11, 2015 but did not receive its “778 F.3d 645” designation until a month and a half later.  During the intervening weeks it was cited at least eight times by district courts within the Seventh Circuit.  Perforce those citations identified the Seventh Circuit opinion by docket number and exact date or a proprietary database citation (“WL”).  Most, but not all, used both in parallel, yielding citations in the following form: Curvin v. Colvin, No. 13-3622, 2015 WL 542847 (7th Cir. Feb. 11, 2015).  A straight database search on “778 F.3d 645” will not retrieve those cases.  A database search on “2015 WL 542847” will retrieve those using the Westlaw cite (but not those employing the LEXIS equivalent “2015 U.S. App. LEXIS 2170” or the “F.3d” cite).  A search on “13-3622” and “Curvin” will retrieve those including Curvin’s docket number but not those relying solely on a proprietary database cite or the ultimate “F.3d” cite.

Most case law databases purport to do this messy work for the researcher.  With some Curvin’s rank in a set of search results may even be determined by how many citations to it there have been.  What not all manage to do is to include those instances of citation that occurred so soon after Curvin’s release they could not refer to the case as “778 F.3d 645”.  A review of how the major systems actually address this issue (or don’t) follows.

Westlaw

The dominance of Westlaw within the federal judiciary gives that system a clear advantage.  So long as the early decisions cite the not-yet-published version of a case using its “WL” citation, Westlaw can employ that identifier to link them with those citing to the version later published in the company’s National Reporter System (NRS).  But what about decisions written by  federal judges who use LexisNexis and cite using its proprietary system?  Senior Judge Donetta W. Ambrose of the Western District of Pennsylvania falls in this category.  Had she relied on Curvin in late February or early March 2015, her opinion would almost certainly have cited it: Curvin v. Colvin, 2015 U.S. App. LEXIS 2170 (7th Cir. 2015).  (See, for example, her decision in Nickens v. Colvin.)  How would Westlaw have responded?  It would have added a parallel “2015 WL 542847” to her Lexis cite, as it does to all opinion citations to “not yet published” or “never to be published” cases contained in the Westlaw database.  That editorial step simplifies aggregation of all citations to a case prior its print publication.  While Westlaw no longer displays the “WL” cite for decisions that have been given print citations in the National Reporter System, the service’s citation listings rest on its maintaining the association between preliminary “WL” cites and their subsequent NRS equivalents.  This approach enables Westlaw’s listing of cases citing Curvin to include the early ones that did not use its F.3d volume and page number.

westlaw_citator

LexisNexis

Lexis follows a similar strategy.  Since most federal judges use Westlaw most of the early decisions citing Curvin used its Westlaw cite.  See, e.g., Haire v. Colvin, No. 1:14-CV-00322-TAB-JMS (S.D. Ind. Feb. 20, 2015).  On Lexis the cite to Curvin in Haire includes an added “U.S. App. LEXIS” cite.  That enables the inclusion of Haire in the service’s dynamically generated list of decisions citing Curvin.  It also facilitates another Lexis practice, the subsequent addition of parallel “F.3d” cites to decisions that did not, as written, include them.

lexis_citator

Bloomberg Law

Bloomberg has a “BL” citing scheme which it now deploys much like the Lexis cites, but with greater clarity.  When a case in its database is cited by a later decision using only docket number and date or a Westlaw or Lexis cite, Bloomberg inserts a parallel “BL” cite.  This editorial addition is, however, placed in square brackets, an acknowledgment that it was not part of the original text.  Bloomberg Law has expanded Haire’s cite to Curvin written by the court as “Curvin v. Colvin, No. 13-3622, 2015 WL 542847, at *4, — F.3d —- (7th Cir. Feb. 11, 2015)” to “Curvin v. Colvin, No. 13-3622, [2015 BL 34654], 2015 U.S. App. LEXIS 2170 , 2015 WL 542847 , at *4, ___ F.3d ___ (7th Cir. Feb. 11, 2015)”.  This practice appears relatively new.  Decisions of an earlier vintage Bloomberg loaded as received without adding “BL” parallel cites.  As a result decisions from that period are missed by Bloomberg’s linked retrieval of citing documents.  (The fact that Bloomberg’s versions of decisions now also include the Lexis cite, without the square brackets, suggests a data sharing arrangement between the two companies.)

bloomberg_citator

Judging at least from this sample of one, Bloomberg appears to add cases more rapidly than either Westlaw or Lexis.  During the week of April 20th two more district court decisions citing Curvin were released.  Both were in the Bloomberg database and listed as citing cases the following day.

The More Limited Approach of Google Scholar, Fastcase, and Casemaker

Google Scholar does not to attempt to track citing references for cases until they have received a permanent citation in the Thomson Reuters books.  To date it does not have the NRS version of Curvin.  When one clicks on the “How cited” link for the “slip” version of the  case, one gets the message: “We could not determine how this case has been cited.”  To find those cases a researcher must know to search on the party names and Curvin’s docket number or, alternatively, on its proprietary cites.  The latter, of course, do not appear on Google Scholar or the public domain version of Curvin released by the Seventh Circuit and now (and forever?) available from the GPO’s Federal Digital System (FDsys).  At some point Scholar will replace the original version of Curvin with that published by Thomson Reuters.  Once it has, the decision’s “How cited” link will work, but it will not retrieve the early cases which did not cite Curvin by volume and page number because they could not.  Researchers who know that can augment Google’s automatically generated list by doing the sort of searches suggested above.

Like Google Scholar both Casemaker and Fastcase limit their retrieval of citing cases to those that cite by means of NRS volume and page number, thereby missing the earliest references.  Leavitt v. Cohen, No. 1:12-cv-1427-DKL-JMS (S.D. Ind. March 4, 2014) cited Moore v. Colvin, 743 F.3d 1118 (7th Cir. 2014), released less than a week before, using the format: Moore v. Colvin, ___ F.3d ___, 2014 WL 763223, *1(7th Cir. 2014).  Since neither Fastcase nor Casemaker later fill in such blank “F.3d” citations or employ an enduring identifier for Moore (like the proprietary citation schemes of Bloomberg, Lexis, and Westlaw) neither includes Leavitt as a case citing Moore as those services do.

What about Newcomers like Ravel Law and Casetext?

Casetext does not yet have a fully developed method of indexing citing cases.  It is designed to allow the ranking of search results by “Cite count” but while its database includes many more it lists only two cases as citing Moore.

Ravel has stronger incentive to solve the citator problem because its visualization of search results derives in significant part from citation links.  However, to date Ravel’s cite count does not include case citations that pre-date the availability of the canonical NRS volume and page cite for a case.  It counts only 70 cases as citing Moore v. Colvin.  Those in its database not using that decision’s full “F.3d” cite do not make the list.

Citators and Never-to-be-Published Decisions

A 2013 “unpublished” Social Security decision of the Ninth Circuit illuminates this closely related citator issue. In Farias v. Colvin, No. 11-57088 (9th Cir. May 20, 2013), the court reversed a district court decision that had affirmed a denial of disability benefits.  Its memorandum opinion faulted the Administrative Law Judge’s uncritical acceptance of testimony from a vocational expert.  Being an unpublished memorandum opinion the Farias decision does not enjoy the status of precedent even within the courts that comprise the Ninth Circuit. Print-based Shepard’s would have ignored it.

On the other hand, unpublished decisions like Farias can be cited by counsel as persuasive authority.  In fact, at least fifteen subsequent (unpublished) district court decisions refer to the Farias case.  Because of the Thomson Reuters Federal Appendix reporter, Farias did in fact receive a print citation before 2013 was over, notwithstanding its “unpublished” designation, but not before being cited in at least two district court decisions.  Thus, in one sense cases like it pose the same problem for citation compilers as those posed by cases eventually published in the Federal Reporter – a need to gather the earliest citations together with later ones expressed in terms of print volume and page numbers.  However, the decision’s “unpublished” status and the dubious value of “Fed. Appx.” cites has led some case law services to stumble over providing useful citator results.  The major three –Bloomberg, Lexis, and Westlaw – use their respective systems of proprietary citation to link Farias to the full spectrum of citing district court decisions.  In contrast users of Google Scholar, Casemaker, and Fastcase are led to believe that Farias has not been cited unless they know enough to undertake a forward citation search on their own.  And because some of the citing cases use the Farias decision’s “Fed. Appx.” cite and others don’t, some include the case docket number but most don’t, some use a proprietary database citation and others not, no single search other than one based simply on the case name (“Farias v. Colvin”) will retrieve them all.

One More Argument for Adoption of Court-Applied Systems of Citation

In jurisdictions that attach official citations to decisions at the time of release there is little difficulty generating a complete list of subsequent citing cases.  Assuming that the court-attached citations are routinely used (whether or not in parallel with the National Reporter System or any other citation) a simple database search will retrieve all citing references.  In 1999 the Oklahoma Supreme Court decided an influential case dealing with attorney malpractice liability.  When released it carried the designation “1999 OK 79”.  A search on that string, whether carried out directly by a researcher or automatically by software generating a citator list, should gather a comprehensive list of references to Manley v. Brown.  That fact has enabled the Oklahoma State Courts Network database to append a list of citing cases to the decision in Manley.  Although the case appears in the National Reporter System as “989 P.2d 448” a researcher or automated citator searching cases for references to Manley will not be thrown off by use of that print reference so long as it appears in parallel with the court-attached cite, as it does in all Oklahoma decisions and in a 2013 decision of the Illinois Appellate Court.  Any citation search that relies solely on NRS citations for Oklahoma cases runs the risk of missing some.

How Google Scholar Undercuts Jurisdictions Going Digital While It Could as Easily Support them

Monday, January 26th, 2015

Google Scholar’s case law collection has been an enormous boon to this country’s lawyers and all others puzzling over U.S. law.  Not only does it provide free and direct access to a professional quality case database, but it enables legal commentary linked to governing precedent to reside outside a pay wall.  Ironically, this breakthrough electronic research tool remains largely reliant on print source material.  That is for many jurisdictions a direct consequence of the courts themselves being stuck in obsolete publication practices.  But Scholar’s reliance on print holds even for states in which there is a more authoritative digital alternative.  In the case of several state courts that have recently shifted to official online publication, Scholar persists in loading digitized versions of their decisions drawn from the pages of the Thomson Reuters National Reporter System (NRS).  For at least one – Illinois – this is done without preserving the official citation information required in all submissions to that state’s courts.

Exhibit No. 1: Google Scholar’s Treatment of Illinois Decisions

In July 2011, less than two years after Google Scholar unveiled its case law database, Illinois began publishing the official versions of its appellate decisions online.  Print publication of the Illinois Official Reports ceased.  As a consequence the final and official version of the Illinois Supreme Court in Lake County Grading Co. v. Village of Antioch, 2014 IL 115805 (and all other binding decisions rendered by Illinois appellate courts since the switch) is available for anyone, including Google, to download from a public site.  The text’s official status is indicated, and all that one needs to cite that decision to an Illinois court, in whole or in part, is contained in the electronic document.  One could hope, one might expect, that Google Scholar would embrace and leverage this judicial reform.  The change was, after all, prompted by many of the same goals that lie behind the Google initiative.  Yet Scholar continues to digitize the print NRS version of this and other post-2011 Illinois decisions.  Worse, while doing so it drops the medium neutral citations by which Illinois courts identify those decisions and require those invoking them to employ (“2014 IL 115805” in the case of Lake County Grading).  Google’s practice appears to be to harvest Illinois decisions when first released in slip opinion form, to ignore the subsequent “official” electronic version, and ultimately to replace the slip opinion with a digitized copy of the NRS text.  This final case report displays the volume number and page at which the decision is located within the NRS North Eastern Reporter as well as its internal pagination and paragraph numbers.  But critically it omits the official medium-neutral case cite.  For an example take a look at People v. Colyar, 2013 IL 111835.  It can’t be said that Scholar completely ignores the new non-print Illinois citations, for it uses them to index decisions.  As a result Colyar’s citation (“2013 IL 111835”) entered as a search will retrieve the case.  The official cite also appears in Colyar’s listing when the decision is retrieved by a typical word search.  The problem is that it remains absent from the opinion text when displayed on the screen, downloaded, or printed out.

Exhibit No. 2: New Mexico

New Mexico furnishes a second example of Google’s unfortunate print bias.  Like Illinois, New Mexico ceased publishing official print reports in 2011.  Since then the official version of any precedential New Mexico decision is contained in an electronic file retrievable without charge from the New Mexico Compilation Commission siteZhao v. Montoya, 2014-NMSC-025 is one such case.  Ignoring the change, Google Scholar has continued to draw its final text of the state’s appellate decisions from the NRS Pacific Reporter.  However, probably because New Mexico began attaching neutral citations to decisions long before the Scholar case database was conceived or designed, Google’s print-based acquisition process has, from the start, extracted those official citations from the NRS reports and included them within each case.  On the other hand, since Google Scholar relies on the Pacific Reporter for that information, decisions appear without their official citation until they have been published by Thomson Reuters and digitized by Google from that print source.  Compare the official version of Wilkeson v. State Farm Mut. Auto. Ins. Co., 2014-NMCA-077, with that provided by Google Scholar.

Exhibit No. 3: Oklahoma

Scholar’s treatment of Oklahoma decisions demonstrates that this need not be so.  The Oklahoma judiciary declared its online publication of appellate decisions official as of the beginning of 2014.  As with the others this reform did not alter Google Scholar’s reliance on the NRS as the ultimate source of Oklahoma’s case law.  Scholar continues to download Oklahoma decisions from the public site at the time of initial release, ignore the subsequent electronic versions designated as “official”, and replace the original files with digital copies of the texts once they appear in the Pacific Reporter.  There is one important difference.  Each decision’s medium neutral citation (e.g., “2013 OK CIV APP 105”) is displayed at the top from the beginning.

Exhibit No. 4: Arkansas

Official Arkansas case reports have been electronic since 2009.  That same year the Arkansas Supreme Court erased the distinction between published and unpublished decisions.  All decisions of the Arkansas Supreme Court and Court of Appeals now carry precedential weight.  Faced with the resulting surge in the volume of citable Arkansas decisions, Thomson Reuters, refused to publish them all.  Without guidance from the Arkansas courts, the company’s editors now select only a small percentage for print publication (less than 17% of the 2013 Court of Appeals decisions).  Those that appear in S.W.3d are digitized by Google Scholar (complete with internal pagination) from that source and substituted for the prior court-distributed version.  While Google’s digitization process retains the public domain case designations applied by the deciding court (e.g., “2013 Ark. App. 738”) it strips out another crucial citation element.  Although the NRS version displays the page breaks that appear in the official electronic case report, Scholar leaves them out.  For that reason its versions of Arkansas decisions, both those drawn from the official site and those based on the regional reporter, cannot be used to prepare pinpoint citations in the format called for by that state’s appellate rules.

Exhibit No. 5: Ohio

When the Ohio Supreme Court implemented a non-print citation system in 2002 it too removed the prior distinction between “published and unpublished” decisions.  Ten years later it abandoned print publication of all decisions from the Ohio Court of Appeals.  Since July 1, 2012 the official version of any decision of that court has been the authenticated electronic copy released by the Reporter of Decisions.  During 2013 the court’s twelve districts issued over 5,200 such precedential opinions.  Only 360 or so were selected by the NRS editors for publication in the North Eastern Reporter.  As with Arkansas, Google Scholar loads the entire set of Court of Appeals decisions, later adding  volume and page number cites to the indexing data for those decisions that appear in the regional reporter.  It does not, however, display the NRS reporter citation as part of the opinion.  As is true of the official cites in Illinois, these appear only as part of the listing of results delivered in response to a search.  Thus while a search on “992 N.E.2d 453” will retrieve State v. Venes, 2013 Ohio 1891 (Ct. App. 8th Dist.), that NRS citation does not appear within the opinion nor does Scholar show the NRS pagination.

Google Scholar’s Treatment of the Official Print Reports of California, Massachusetts, and New York Demonstrates that It Can Do Better

The Ohio example reveals that Google’s reliance on the Thomson Reuters reports does not reflect its approach to all U.S. jurisdictions, cost-effective though that might be.  After all, economy and efficiency might well argue for acquiring all case data from that single source.  Ohio does not stand alone.  In the case of several states that still publish their own law reports in print (or contracting for their publication) Google digitizes those reports rather than their NRS counterparts.

California, Massachusetts, and New York are among those “official report” states.  Importantly, these three employ distinct formats for internal citations.  To illustrate, as published in New York’s official reports, the New York Court of Appeals decision in De La Cruz v. Caddell Dry Dock & Repair Co., 21 N.Y.3d 530 (2013), cites a prior decision of the court as follows: “Brukhman v Giuliani (94 NY2d 387 [2000])”.  In the Thomson Reuters editions the citation to Brukhman v. Giuliani becomes: “Brukhman v. Giuliani, 94 N.Y.2d 387, 705 N.Y.S.2d 558, 727 N.E.2d 116 (2000)”.  As detailed in a prior post, such citation format differences make it easy to detect whether the decision texts for the jurisdiction have been drawn from its official reports or from the proprietary NRS.

Applied to Google Scholar this analysis establishes that it currently draws New York case data from the official reports.  Have a look at its version of De La Cruz.  Although the volume and page numbers at which that decision appears in the North Eastern Reporter and New York Supplement have been added so that users can extract a parallel cite, the format of the citations contained within Scholar’s version of De La Cruz decision, as well as the page breaks shown within the text, reveal the version to be a digital copy of the official report.  Similar citation analysis reveals that Google Scholar also relies on California and Massachusetts official reports for decisions from those states.  In other words, Google’s data acquisition process does not rest exclusively or consistently on the Thomson Reuters reports.

Drawing on the official reports of California, New York, and Massachusetts necessitates digitizing print.  But with states like Illinois and the others that have moved to official electronic distribution this is unnecessary.  Transposed to them, using the official version of decisions would avoid that costly process and require only two or three steps:

  1. Loading opinions as first released, include all citation data embedded in them (case cites, paragraph numbers, or when necessary, as with Arkansas, internal pagination). Google currently accomplishes this with Oklahoma and Ohio, but fails to do so for Arkansas, Illinois, or New Mexico.
  2. Second, if decisions are initially released in a preliminary or slip form, substituting their final, official versions, once available, again, retaining all citation data. Patently, Google follows this pattern in New York, California, and Massachusetts where that final, official version is brought out in print.
  3. Finally, adding a parallel National Reporter System volume and page number cite to the official medium neutral citation once it becomes available. Google’s process for decisions from New Mexico and Oklahoma, not to speak of the print publication states, New York, California, and Massachusetts, demonstrates that its data systems are capable of this step.

One can hope for the day when all U.S. courts publish their official reports electronically, allowing the full range of legal research services to redistribute final, official, citable copies, adding diverse levels and types of editorial enhancement, including their own citation schemes.  Jurisdictions weighing a shift toward that future ought to be encouraged.  More respectful recognition of the measures taken by states that have already gone digital is an essential first step.  Google Scholar, the dominant free source of U.S. case law, ought to lead the way.

Citations Generated by the Major Online Systems

Friday, November 14th, 2014

A recent post on the Legal Writing Prof Blog draws attention to Westlaw’s copy-with-reference feature. Its author raises a concern that the option to have citations formatted in the ALWD style still yields citations conformed to that manual’s fourth edition rather than the fifth edition, published earlier this year.  Since ALWD’s new version adheres to The Bluebook’s citation style in nearly all particulars, that problem is easily solved: The Westlaw folks need simply to remove the ALWD option.  However, those engaged in teaching legal writing and introducing law students to citation need to be attentive to numerous other imperfections in this WestlawNext feature and its LexisAdvance analog, as well as in the citations generated by other research services those 1Ls may employ once in practice.

copywithcite1

To begin, although the blogger writes of there being a Bluebook option, that label does not appear among the citation format options of either major service.  The default citation style offered by both Westlaw and Lexis is denominated “Standard”.  Is that due to trademark concerns?  For reasons set out in an earlier post, I doubt it.  The truth is that neither system consistently produces Bluebook compliant citations across the several types of authority and to suggest otherwise would be misleading.  “Standard” doesn’t make such a claim, although it appears it may lead legal writing teachers and their students, not to speak of lawyers and other online researchers, to believe that is the case.

One other point made in that short post arouses concern. Its author observes that because of this new and amazing feature “I can spend a little less time teaching citation format.”  For reasons explained in the latest version of Basic Legal Citation, I view that as a mistake. Let me point out a few reasons why a researcher who wants to employ Bluebook (or ALWD) conforming citations in a brief or memorandum will have to know enough to add, subtract, or modify those delivered by either Westlaw or Lexis.

1. Cases

As pointed out in an earlier post, a major attraction of any copy-with-reference function is that the case name segment of the citations it delivers will have been shrunk through the dropping and abbreviating of certain words.  Per The Bluebook a decision rendered in the matter of

Edward Mann and Holly Mann, Plaintiffs-Appellees, v. LaSalle National Bank, as Trustee under Trust Agreement dated March 22, 1960, and known as Trust No. 24184; Ellenora Kelly; John J. Waters; Irene Breen, as Trustee under Provisions of the Trust Agreement dated January 31, 1973, and known as Trust No. 841; Unknown Beneficiaries of Trust Agreement dated January 31, 1973, and known as Trust No. 841; and Unknown Owners, Defendants-Appellants

is reduced to “Mann v. LaSalle Nat’l Bank”.  Westlaw’s “Standard” format citation for the case is a close though not identical “Mann v. LaSalle Nat. Bank”.  Not The Bluebook’s “Nat’l” nor the “Natl.” favored by earlier editions of the ALWD manual and Bloomberg Law but “Nat.”, the abbreviation long employed by West Publishing Company.

Illinois has its own style manual.  It contains a very short list of names that are to be abbreviated in case names.  “National” is not one of them.  Consequently, citations to Mann by Illinois courts present the case name as “Mann v. LaSalle National Bank”.  One might expect that since Westlaw’s copy-with-reference offers an “Illinois” option choosing it would yield that result.  It doesn’t; the case name for this decision still comes out as “Mann v. LaSalle Nat. Bank”.  LexisAdvance also offers a choice between “Standard” and “Illinois” style citations when copying passages from Mann.  As with Westlaw they render the case name identically.  But in compliance with The Bluebook, Lexis abbreviates “National” as “Nat’l”.

A big deal?  Grounds for choosing Lexis over Westlaw?  Hardly.  I know of no instance of an attorney being chastised by a court for using non-Bluebook abbreviations and have argued that consistent use of those delivered by the writer’s online source ought to be a totally acceptable approach in professional practice.  With their tight attachment to The Bluebook, law journal editors are likely to disagree.

The bigger deal is how Westlaw and Lexis treat the balance of a case citation, particularly if the jurisdiction has, like Illinois, adopted a system of non-print-based citation.  Take the recent case of Brandhorst v. Johnson.  In decisions of Illinois courts and briefs submitted to them a reference to a particular passage of that case in the form ”Brandhorst v. Johnson, 2014 IL App (4th) 130923, ¶ 57” would be complete.  The Bluebook insists that a reference to the National Reporter System (“12 N.E.3d 198, 210” in the case of that passage of Brandhorst) be included in parallel.  When the paragraph in question is copied from WestlawNext with its citation in “Standard” format the paragraph number is not included in the cite.  (LexisAdvance includes it.)  Westlaw does not include the parallel N.E.3d cite in either the “Standard” or “Illinois” style citations for the case. Lexis includes it and adhering to The Bluebook includes a pinpoint page reference.  However, Lexis departs from The Bluebook by throwing in the totally unnecessary “382 Ill. Dec. 198, 206” when the “Standard” format is chosen.  Westlaw’s “Illinois” style citation for the case adds the parenthetical “(Ill. App. Ct. 4th Dist. June 11, 2014)” which none of the style manuals calls for.  The Illinois style guide explicitly states that there is no need for a citation to identify the appellate district “unless that information is of particular relevance to the discussion”.  (Moreover, since the district number is part of the jurisdiction’s public domain citation system, with any recent case like Brandhorst its repetition in a parenthetical wastes space.)  In sum, neither Westlaw nor Lexis delivers a Bluebook cite for this case.  Neither delivers an “Illinois” format citation that conforms to the state’s style guide.  Users who would conform their writing to either of those citation standards need to modify or add to what those online systems serve up programmatically along with a copied passage.

2. Statutes (and regulations)

A provision of the Social Security Act with considerable contemporary relevance is to be found in 42 U.S.C. § 416(h)(1)(A)(ii).  Copy its language with citation from Westlaw and what you get is “42 U.S.C.A. § 416 (West)”.  Lexis renders its citation as “42 USCS § 416”.  Neither service is prepared to yield its branded designation of the U.S. Code to the conventionally used generic or official format.  Neither includes a date or other indication of the currency of the compilation The Bluebook calls for.  And critically, neither provides the absolutely essential subsection and paragraph identifiers that specify the portion of 42 U.S.C. § 416 one is copying.  The blocked text may include “(ii)” but that alone is not enough.  The same failure to reach below the section level holds with citations to regulations.

3. Conclusion

At their current stage of evolution none of the major research services (including not only Westlaw and Lexis, but Bloomberg Law, Fastcase, and Casemaker) can be relied upon to produce primary law citations that fully comply with The Bluebook or, indeed, any of the other citation styles they may list.  In any setting where citation format is critical, users need to know that.  And all researchers need to be aware that the citations of statutes or regulations these systems generate will often be seriously incomplete.

Pennsylvania Supreme Court Drops Parallel Citation Requirement

Tuesday, May 20th, 2014

West Publishing (now Thomson Reuters) took over publication of the Pennsylvania Reports forty years ago. The headnotes, key numbers, and other editorial interventions of that series of books have, ever since, been drawn straight from the National Reporter System.  However, Pennsylvania Reports page and volume numbers remained independent of those that identify Pennsylvania decisions in the Atlantic Reporter. Because of that divergence the state’s rules of appellate procedure required parallel case citations of Pennsylvania decisions. Explaining that this did not impose an unreasonable burden on the bar, the rule’s Official Note explained:

Counsel having available the Atlantic Reporter can readily obtain the official citation from cross-reference sheets ordinarily pasted on the flyleaf of each Atlantic Reporter volume; counsel having the official reports available can obtain the Atlantic Reporter citation from cross-references available in Shepard’s Pennsylvania Citations – Case Edition or the National Reporter Blue Book.

“Cross-reference sheets … pasted on the flyleaf of each Atlantic Reporter volume”! That was a different era. Today, because volume and page number pairs extracted from either reporter will retrieve the cited case from all online research services used by Pennsylvania judges and attorneys the requirement serves no purpose. Last month the Pennsylvania Supreme Court removed it (and the portion of the Official Note quoted above).

image-2471

No longer will attorneys have to cite to the still nominally “official” Pennsylvania Reports. It remains to be seen whether Pennsylvania’s appellate judges will themselves drop the unnecessary parallel cites. Thomson Reuters has slashed the price for a full set of the Pennsylvania Reports from $2,790 to $2,232.00.
penn_reports

They do look handsome on the shelf.

The ALWD Guide Capitulates

Tuesday, May 13th, 2014

alwd

The fifth edition of the ALWD Citation Manual was published this past month, renamed the ALWD Guide to Legal Citation and stripped of the previous subtitle “A Professional System of Citation.” That event warrants attention here. This post is the first but probably not the last commenting on this latest version of what has been an important citation reference and teaching book. (In view of the name change I’ll refer to it hereafter as the ALWD guide rather than switching back and forth between “manual” and “guide.”)

The obvious place to begin is with the work’s final capitulation to The Bluebook. The publisher’s description highlights this edition’s elimination of “stylistic differences between the ALWD Manual and the Bluebook, to help combat the perception that students who learn citation with ALWD do not know how to ‘Bluebook.’

 1. Editions 1 through 4

When first introduced in 2000, the ALWD guide offered an alternative approach on numerous issues of style. Fundamentally it set forth a “single and consistent set of rules for all forms of legal writing.” It rejected The Bluebook’s “separate and inconsistent systems” for academic writing and professional writing in the form of memoranda and briefs. Its citation rules were derived, it said, from professional consensus. Finally, reflecting the reality that in the world of law practice rules and practices specific to a jurisdiction often trump academically proclaimed “uniform” rules, it included an appendix detailing “local citation rules or preferences.” The subtitle accurately reflected this professional perspective.

The original ALWD guide didn’t allow itself to be trapped by The Bluebook’s inconsistencies. When the citation practice in some jurisdictions or courts offered a less cumbersome format than The Bluebook prescribed, the 2000 ALWD guide felt free to embrace it. ALWD members and fans of its guide were not content with securing its adoption by legal writing faculty. They sought to persuade law journals to adopt its style. They lobbied courts whose rules mandated Bluebook compliance to accept ALWD style as an alternative. In both respects they realized some success, although, no doubt, less than they had hoped for.

ALWD’s second edition (2002) maintained this independent stance. By the third (2006) the hope of winning over a critical mass of law journals had been relinquished, and consistent typeface conventions disappeared. For the first time the guide offered instruction on where and how to use large and small capital letters when “working with a journal or publisher that requires you to use this convention.” It also yielded on the typeface to be applied to statutory titles (“ordinary” rather than the “italics” called for by editions 1 and 2). The fourth edition (2010) brought further erosion. From the beginning the ALWD table of case name abbreviations had eschewed contractions. In the fourth edition for every word The Bluebook abbreviated with a contraction, the ALWD guide now offered that contraction as an alternative, coupled with the advice that if the writer chose to use contractions they should be used “consistently throughout the paper.” But on any number of other points ALWD style remained distinct.

No longer. Those few journals that call for the citations in article submissions to be formatted in ALWD style and state rules of procedure (like those in Alabama and Idaho) that specify ALWD style as a Bluebook alternative have been rendered dead letter. Why the complete surrender? Pressure from the guide’s main market segment and constituency, law students and those who teach them. The preface to the fifth edition explains (without once naming The Bluebook): “Feedback from membership surveys pointed to the staying power of certain scholarly traditions in legal citation and urged that ALWD modify its rules to acknowledge those traditions.” In the fifth edition, the publication’s ambition appears reduced to doing a better job than The Bluebook of delivering Bluebook content.

2. Positions Surrendered

What are some of the points on which ALWD has given up its distinct, reasonable and professionally grounded position?

a. Appellate court abbreviations

A simple one concerns the abbreviation for a state’s intermediate appellate court to be used when the cite itself does not identify the court. For example, the writer wishes to cite a decision of the Florida Court of Appeals, the Minnesota Court of Appeals, or the Texas Court of Appeals using its volume and page number in the National Reporter System. Per The Bluebook that is done as follows: Szarzynski v. Szarzynski, 732 N.W.2d 285 (Minn. Ct. App. 2007). Before the fifth edition the ALWD work took the sensible position that “Ct.” was unnecessary and instructed that the citation be written: Szarzynski v. Szarzynski, 732 N.W.2d 285 (Minn. App. 2007). Several considerations commend that approach not the least of which is that Minnesota courts and lawyers employ that style. Jurisdictions that have implemented print-independent or neutral citation schemes along the lines recommended by the A.B.A. and the American Association of Law Libraries use the state abbreviation and “App” to designate decisions of intermediate appeals courts. Nor do they stand alone. In their citation practice any number of courts and lawyers employ the more economic “Fla. App.”, “Minn. App.”, and “Tex. App.” Sadly, the fifth edition of ALWD has abandoned that approach. Stripping unnecessary elements or characters from citations is always desirable.

b. Treatment of the Federal Appendix reporter

Another unfortunate point of Bluebook merger is on the abbreviation to be used in citations to that ridiculous reporter of “unreported” decisions, the Federal Appendix. The publisher’s abbreviation for this series is “Fed. Appx.” and that is how past editions of ALWD had it. Knowledgeable Bluebook users know that it favors “Fed. App’x”. A citation which The Bluebook would have be written, Robinson v. Allstate Ins. Co., 508 Fed. App’x 7 (2d Cir. 2013), ALWD and the publisher formatted as Robinson v. Allstate Ins. Co., 508 Fed. Appx. 7 (2d Cir. 2013). Although this is a point of style on which the federal courts are themselves divided, a search of recent federal decisions uncovers a preference for “Fed. Appx.” of over two-to-one. Appealing the matter all the way to the top, one discovers that the Supreme Court consistently employs “Fed. Appx.” There is no justification other than conformity for the ALWD guide to yield on this point.

c. Use of contractions in case names

The Bluebook’s use of “App’x” rather than “Appx.” reflects a general attachment to contractions. They dot its list of abbreviations to be used in case names – “Ass’n” for “Association”, Comm’r for Commissioner, Dep’t for Department, Eng’r for Engineer, Fed’n for Federation, Int’l for International, and so on. As noted above, prior to the fourth edition, the ALWD guide’s abbreviations contained no apostrophes; all ended with periods (e.g., Engr. and Intl.). The fourth edition authorized use of contractions as an alternative (e.g., Engr. or Eng’r, Intl. or Int’l). This new fifth edition specifies contractions wherever The Bluebook does without an alternative. Where The Bluebook takes an inconsistent approach (“Envtl.” rather than “Envt’l”) ALWD now follows. Such slavish conformity cannot be justified in terms of uniformity of professional practice, for in this area, most especially, citation norms vary enormously.

d. Internet materials

In its coverage of materials available on the Internet ALWD’s fourth edition called for the URL to be placed in parentheses and for the citation to conclude with a date. In order of preference that date was to be either one explicitly carried by the document itself, or the date the site indicated it was most recently updated (“last updated”), or the date the writer last accessed the material (“accessed”).

To adhere to The Bluebook’s style on these points ALWD’s fifth edition had to strip the parentheses, change “last updated” to “last modified” and “accessed” to “last visited.” The citation treatment of Web materials does continue to evolve, and all these changes can find support in current professional practice. On the other hand, ALWD’s prior style choices were thoroughly defensible, and the conversion of “last updated” to “last modified” can only be explained on grounds of Bluebook conformity. The U.S. Supreme has gone both ways on the matter, and, as on so many other citation details, it follows its own style, using the phrase “as visited” to describe the date it accessed a Web-based document.

e. Et al.

Other points on which the ALWD fifth edition bows to Bluebook style include the citation of:

3. Bottom Line

The removal of the ALWD work’s prior subtitle is telling. The guide no longer provides an independent compilation or codification of professional practice. In joining the legion of “how to cite according to The Bluebook” books and study aids it reinforces the erroneous impression that U.S. legal citation style is both uniform and static. That was not true in 2000 when the ALWD guide first appeared. It is even less true today as the transformation and proliferation of legal information sources continues to accelerate. New and knotty issues of citation policy call for serious attention and fresh approaches. It is truly unfortunate that ALWD has ceded all initiative to others.

Judges Revising Opinions after Their Release

Tuesday, April 29th, 2014

A. Background: How legislatures and agencies handle revision

1. Revision by Congress

When Congress enacts and the President signs a carelessly drafted piece of legislation it becomes the law.  All must live with, puzzle over, and, in some cases, find an ad hoc way to cite what Congress has done.  Congress can clarify the situation or correct the error but only by employing the same formal process to amend that it previously used to enact.  In October 1998, Congress passed two separate bills adding provisions to Title 17 of the U.S. Code, the Copyright Act.  Both added a new section 512.  Embarrassing?  Perhaps.  Did this pose a serious question of Congressional intent?  No.  Clearly, the second new 512 was not meant to overwrite the first; the two addressed very different topics.   Did this pose a problem for those who wanted to cite either of the new sections?  For sure, but one readily addressed either by appending a parenthetical to disambiguate a reference to 17 U.S.C. § 512 or by citing to the session law containing the pertinent 512.  In time the error was resolved by a law making “technical corrections” to the Copyright Act.  One of the two sections 512 was renumbered 513.

tech_correction

During 2013 Congress passed four pieces of legislation that made “technical corrections” to scattered provisions of the U.S. Code.  Unsurprisingly, tidying up drafting errors of this sort is not a high Congressional priority.  For ten years there have been two slightly different versions of 5 U.S.C. § 3598; for nearly eighteen, two completely different versions of 28 U.S.C. § 1932.  The Code contains cross-references to non-existent provisions and myriad other typos.  Some are humorous (as, for example, the definition of “nongovernmental entities” that includes “organizations that provide products and services associated with … satellite imagines).  The various compilers of Congress’s work product do their best to note such glitches where they exist and, if possible, suggest that body’s probable intention.  They do not, however, view themselves as at liberty to make editorial corrections.

2. Agency typos and omissions

Pretty much the same holds for regulations adopted by federal administrative agencies.  When a final regulation contains inept language, a typo, or some other drafting error, the Office of the Federal Register publishes it “as is”.  The authoring agency must subsequently correct or otherwise revise by publishing an amendment, also in the Federal Register.  Until the problem is caught and addressed through a formal amendment, the original version is “the law.”  In the meantime, all who must understand or apply it – agency personnel, the public, and courts – must interpret the puzzling language in light of the agency’s most likely intent.  The Federal Register is filled with regulatory filings making “correcting amendments.”  A search on that phrase limited to 2013 retrieves a total of eighty.  For a pair of straightforward examples see 78 Fed. Reg. 76,986 (2013).

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B. Judicial opinions – An altogether different story

With judicial opinions the situation is startlingly different.  When judges release decisions containing similar bits of sloppiness, the process for correcting them is far less certain and, with some courts, far less transparent.  What sets courts apart from other law enunciating bodies in the U.S. is their widespread practice of unannounced and unspecified revision well after the legal proceeding resulting in a decision binding on the parties has concluded.  Several factors, some rooted in print era realities, are to blame.

To begin, most U.S. appellate courts began the last century with the functions of opinion writing and law reporting in separate hands.  Public officials, commonly called “reporters of decisions” cumulated the opinions issued by appellate courts and periodically published them in volumes, together with indices, annotations, and other editorial enhancements.  Invariably, they engaged in copy editing and cite checking decision texts, as well, subject to such oversight as the judges cared to exercise.  The existence of that separate office together with the long period stretching from opinion release to final publication in a bound volume induced judges to think of the opinions they filed in cases, distributed to the parties and interested others in “slip opinion” form, as drafts which they could still “correct” or otherwise improve.  That mindset combined with the discursive nature of judicial texts, their attribution to individual authors, and judicial egos can produce a troubling and truly unnecessary level of post-release revision.  At the extreme, judicial fiddling with the language of opinions doesn’t even end with print publication.  Dissenting in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Justice Thomas wrote: “The principle ‘ingredient’ for ‘energy in the executive’ is ‘unity.’” (The quoted fragments are from No. 70 of the Federalist Papers.)  That was June 2004.  The sentence remained in that form in the preliminary print issued the following year and the final bound volume which appeared in 2006.  Volume 550 of the United States Reports published in 2010, however, contains an “erratum” notice that directs a change in that line of Thomas’s dissent, namely the substitution of “principal” for “principle.”  Six years after the opinion was handed down, it is hard to understand who is to make that change and why — beyond salving the embarrassment of the author.  None of the online services have altered the opinion.

 erratum

Judges, even those on the highest courts, make minor errors all the time.  What they seem to have great difficulty doing is letting them lie.  This seems particularly true of courts for which print still serves as the medium for final and official publication.  The Kansas Judicial Branch web site explains about the only version of opinions it furnishes the public:

Slip opinions are subject to motions for rehearing and petitions for review prior to issuance of the mandate. Before citing a slip opinion, determine that the opinion has become final. Slip opinions also are subject to modification orders and editorial corrections prior to publication in the official reporters. Consult the bound volumes of Kansas Reports and Kansas Court of Appeals Reports for the final, official texts of the opinions of the Kansas Supreme Court and the Kansas Court of Appeals. Attorneys are requested to call prompt attention to typographical or other formal errors; please notify Richard Ross, Reporter of Decisions ….

Since the path from slip opinion to final bound volume can stretch out for months, if not years, the opportunity for revision is prolonged.  Moreover, unless the court releases a conformed electronic copy of that print volume, changes, large or small, are hard to detect.  Interim versions, print or electronic, only compound the difficulty.  For those who maintain case law databases and their users this can be a serious problem, one some of them finesse by not bothering to attempt to detect and make changes reflected in post-release versions.

A shift to official electronic publication inescapably reduces the period for post-release revision since decisions need no longer be held for the accumulation of a full volume before final issuance.  On the other hand, staffing and work flow patterns established during the print era can make it difficult to shift full editorial review, including cite, and quote checking to the period before a decision’s initial release.  Difficult, but not impossible – the Illinois Reporter of Decisions, Brian Ervin, who retired earlier this year, appears to have achieved that goal when the state ceased publishing print law reports in 2011.  Reviewing the Illinois Supreme Court’s decisions of the past year using the CourtListener site in the manner described below, reveals not a single instance of post-release revision.

Procedures in some other states that have made the same shift specify a short period for possible revision, following which decisions become final.  Decisions of the Oklahoma Supreme Court, for example, are not final until the chief justice has issued a mandate in the case and that does not occur until the period for a rehearing request has passed.  Decisions are posted to the Oklahoma State Court Network immediately upon filing, but they carry the notice: “THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.”  Once the mandate has issued, a matter of weeks not months, that warning is removed and the final, official version is marked with the court’s seal.  In New Mexico, another state in which official versions of appellate decisions are now digital, a similar short period for revision is embedded in court practice.  Decisions are initially released in “slip opinion” form.  “Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk …. [During the interim the] New Mexico Compilation Commission provides editorial services such as proofreading, applying court-approved corrections and topic indices.”  As a result of that editorial process, most decisions receive minor revision.  For a representative example, see this comparison of the slip and final versions of a recent decision of the New Mexico Supreme Court (separated in time by less than a month).  Once a decision can be cited, it is in final form.

Typically, when legislatures and administrative agencies make revisions the changes are explicitly delineated.  Most often they are expressed in a form directing the addition, deletion, or substitution of specified words to, from, or within the original text.  Except in the case of post-publication errata notices, that is not the judicial norm.  Even courts that are good about publicly releasing their revised decisions and designating them as “substitute”,” changed”, or “revised” (as many don’t) rarely indicate the nature or importance of the change.  So long as all versions are available in electronic form, however, the changes can be determined through a computer comparison of the document files.  Such a comparison of the final bound version of Davis v. Federal Election Commission, 554 U.S. 724 (2008) with the slip version, for example, reveals that at page 735 the latter had erroneously referred to a “2004 Washington primary.”  The later version corrects that to “2004 Wisconsin primary” – simple error correction rather than significant change.

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More disturbing, by far, are:

  1. the common failure to provide the same degree of public access to revised versions of decisions as to the versions originally filed, and
  2. the substitution of revised versions of decisions for those originally filed without flagging the switch.

Any jurisdiction which, like Kansas, still directs the public and legal profession to print for the final text of an opinion without making available a complete digital replica is guilty of the first.  Less obviously this is true of courts which, like the U.S. Court of Appeals, leave distribution of their final, edited opinions to the commercial sector.  Less conspicuous and, therefore, even more troubling are revisions that courts implement by substituting one digital file for another before final publication.  A prior post noted one example of this form of slight-of-hand at the web site of the Indiana Judicial Branch.  But the Indiana Supreme Court hardly stands alone.  Thanks to the meticulous record-keeping of the CourtListener online database such substitutions can be detected.

Like other case law harvesters, CourtListener regularly and systematically examines court web sites for new decision files.  Unlike others it calculates and displays digital fingerprints for the files it downloads and stores the original copies for public access.  When a fresh version of a previously downloaded file is substituted at the court’s site, its fingerprint reveals whether the content is at all different.  If the fingerprint is not the same, CourtListener downloads and stores the second file.  Importantly, it retains the earlier version as well.  Consequently, a CourtListener retrieval of all decisions from a court, arrayed by filing date, will show revisions by substitution as multiple entries for a single case.  Applied to the decisions of the U.S. Supreme Court during calendar 2011 this technique uncovers ten instances of covert revision.  Happily, none involved major changes.  The spelling of “Pittsburg, California” was corrected in a majority opinion by Justice Scalia, “petitioner” was changed to “respondent” in a majority opinion by Justice Kennedy, “polite remainder” in a Scalia dissent became “polite reminder”, and so on.  The perpetually troublesome “principal/principle” pair was switched in a dissent by Justice Breyer.

Most post-release opinion revisions involve no more than the correction of citations and typos like these, but the lack of transparency or any clear process permits more.  And history furnishes some disturbing examples of that opportunity being exploited.  Judge Douglas Woodlock describes one involving the late Chief Justice Warren Berger in a recent issue of Green Bag.  Far more recent history includes the removal of a lengthy footnote from the majority opinion in Skilling v. United States, 561 U.S. 358 (2010).  The slip opinion file now at the Court’s web site carries no notice of the revision beyond the indication in the “properties” field that it was modified over two weeks after the opinion’s filing date.  To see the original footnote 31 one must go to the CourtListener site or a collection like that of Cornell’s LII built on the assumption that a slip opinion distributed by the Court on day of decision will not be changed prior to its appearance in a preliminary print.

C. Some unsolicited advice directed at public officials who bear responsibility for disseminating case law (reporters, clerks, judges)

1. Minimize or eliminate post-release revision

In this era of immediate electronic access and widespread redistribution, courts should strive to shift all editorial review to the period before release, as Illinois has done.  Judges need to learn to live with their minor drafting errors.  Finally, whatever revision occurs prior to final publication, none should occur thereafter.  In the present age issuance of errata notices years after publication is a pointless gesture.

2. If decisions are released in both preliminary and final versions, make them equally accessible

While the final versions of U.S. Supreme Court decisions are much too slow in appearing, when they do appear they are released in both print and a conformed electronic file.  Most U.S. courts are like those of Kansas and fail to release the final versions of their decisions electronically.  Furthermore, some that do, California being an example, release them in a form and subject to licensing terms that severely limit their usefulness to individual legal professionals and online database providers.

3. Label all decision revisions, as such, and if the revision is ad hoc rather than the result of a systematic editorial process, explain the nature of the change

At least twice this year the Indiana Supreme Court released opinions that omitted the name of one of the attorneys.  As soon as the omission was pointed out, it promptly issued “corrected” versions.  In one case (but not the other) the revision bears the notation that it is a corrected file, with a date.  In neither case is the nature of or reason for the change explained within the second version.  As noted above, too many courts, including the nation’s highest, make stealth revisions, substituting one opinion text for a prior one without even signaling the change.

4. If revision goes beyond simple error correction, vacate the prior decision and issue a new one (following whatever procedure that requires)

United States v. Hayes, No. 09-12024 (11th Cir. Dec. 16, 2010), discussed in a prior post, provides a useful illustration of this commendable practice.  United States v. Burrage, No. 11-3602 (8th Cir. Apr. 4, 2014), falls short, for while it explicitly vacates the same panel’s decision of a month before, it fails to explain the basis for the substitution.

 

Where Should Citations Be Placed? An Old Debate, A Radically Changed Environment

Friday, March 28th, 2014

A. A Revived Debate

A recent column by Bryan Garner in the ABA Journal reprised a theme he has advanced for years: Lawyers and judges should stow their citations in footnotes.  Placed directly within the text of an opinion or brief, Garner argues, citations interfere with the reader’s ability to follow the writer’s ideas and also with the writer’s use of some of the more important techniques of effective writing.  When Garner took his case to the pages of the Court Review in 2001, he focused the argument on judicial opinions, drawing a response from Judge Richard Posner.  Posner conceded that the suggestion “had some merit … but not enough to offset its negative features.”  Most obvious among these, he wrote, “is that they force the reader to interrupt the reading of the text with glances down to the bottom of the page. They prevent continuous reading.”  He also noted that one could tread a middle path: “[T]he author always has the option of putting some … [citations] in footnotes.”

B. How the Electronic Legal Research Environment Bears on the Question for Those Who Write Judicial Opinions

1. Online, the citations in judicial opinions are converted to links

For most of us, the citations to cases, statutes, and administrative regulations we encounter in a judicial opinion are no longer static information about the authorities on which the text rests but electronic pathways enabling immediate access to them.  Read from a screen rather than a page they invite the reader, whether on the first pass through or on a subsequent one, to move back and forth between the primary text and the sources it cites.  Nor need the exploration end with the first link out, for authorities cited by that initial reference, can themselves be inspected with a touch of the screen or click of the mouse.  Cited cases can, with equal ease, be read against subsequent decisions interpreting, distinguishing, disagreeing, or even overruling their position.  The routine conversion of judicial citations to electronic pathways out from the text and targets for citator links into opinions has a direct bearing on optimal citation placement or so it seems to me.

2. Treatment of citation footnotes by most legal research services

The majority of legal database services convert footnotes to linked endnotes.  What this means for citations placed in footnotes can be seen in Google Scholar’s rendition of Harris v. Auto Club Ins. Ass’n,  (2013).  The route to the authorities cited on a point resulting from this treatment consists of two hops, the first following a link from the footnote call to the note, the second on to the case or statutory provision.  Importantly, having been moved from the bottom of the page to the end of the opinion, the citation can no longer be viewed together with the text to which it is attached – a distinct negative.

Harris CaseThe distance between text and citation is even more troublesome when the citation is itself the target of a citator link or search.  Consider a researcher working forward from Smith v. Physicians Health Plan, Inc., 444 Mich. 743 (1994).  An up-to-date index of cases citing Smith will list and link to Harris; however, since the full cite to Smith lies in footnote 24 of Harris, the careful researcher will need to go there before backtracking to the paragraph discussing that 1994 decision.  And on Google Scholar, Bloomburg Law, Casemaker, Fastcase, and Loislaw footnote 24 has become endnote 24.

Compare the Harris example with a Posner opinion (or, for that matter, with a decisioin by the U.S. Supreme Court).  When I look at Judge Posner’s decision in a recent Social Security case, Hughes v. Astrue, 705 F.3d 276 (7th Cir. 2013) I find the proximity of the citations to the propositions they support a decided help in determining whether and when to follow the electronic paths they offer and a convenience when I make such a journey out and back.

Hughes Case

3. The conversion of footnotes to “paragraph notes” or popups

No doubt these considerations explain why neither Lexis nor Westlaw converts judicial opinion footnotes to endnotes.  Their “classic” versions place notes directly following the paragraph in which their calls appear (making them “paragraph-notes,” if you will).  And their next generation systems, LexisAdvance and Westlaw Next, put footnotes in popup windows that appear immediately adjacent to their calls when activated.

Harris Case on Lexis

If a judge could be certain that her opinion would be read from the screen and only as transformed by Lexis or Westlaw there would, I think, be a decent argument for placing judicial citations in footnotes.  But that is an alternate universe.  So long as the majority of caselaw services put greater rather than less distance between footnote calls and their notes than the printed page, inline citations seem the better choice, at least for this reader.

C. How Different Is the Situation for Lawyers Writing Briefs and Memoranda?

While Bryan Garner’s recent essay on citation footnotes draws its examples from court decisions, it takes the same position on the writing that lawyers direct at judges.  Garner writes: “whether or not you ascend to the bench someday, you’ll need to make up your own mind on this issue.”  In a subsequent post I’ll consider how the efiling of briefs and judges reading from tablets may bear that decision.

 

Should It Be “Commissioner”, “Comm’r”, or “Commr.”?

Thursday, February 27th, 2014

1. Truncating and Abbreviating Case Names

The “case name” segment of a case citation serves a very different function from the rest.  Rarely is it used to retrieve the decision.  Although “case name” searches are possible with all online services, use of the case “cite” delivers more accurate results, particularly if the parties have common names or are frequent litigants.  (Try searching on “Smith v. Smith”, “Smith v. Wal-Mart”, or, heaven help you, “Smith v. United States”.)

So why include the parties’ names as part of a citation?  I’ve seen a variety of lame explanations (e.g., “reveals the nature of the litigation”), but am convinced that the fundamental justification rests on the brain’s greater capacity to handle names.  Imagine having to remember or to discuss cases by their retrieval IDs.  Suppose, for example, after making a point in oral argument or law school class you were to be challenged to reconcile your position with “499 U.S. 340.”  Those who litigate in federal court may need to think and argue about “Rule 11 sanctions,” but I wager that most will find it easier to refer to the Supreme Court’s 1991 decision published at 499 U.S. 340 using its name or style or title or caption and will be able to remember that name long after forgetting the case cite.

In the official report that decision appears under the heading “Feist Publications, Inc. v. Rural Telephone Service Co., Inc.”  In oral exchange, and perhaps in memory, that may reduce to “Feist.”  But when constructing a complete citation how should the case name be written?  On that question interests of completeness and intelligibility collide with the need to minimize a case citation’s interruption of the flow of argument it is intended to support.  As one might expect there are different answers as to how that balance should be struck.

2. Stripping Off Excess

US_title

Beginning with the heading or title the deciding court has given a case, there seems to be a fair degree of consensus around several truncation principles:

  • If multiple actions are consolidated in an appeal, drop all but the first.
  • If multiple parties are involved on either or both sides of the case, use only the first.
  • With individuals trim down to a single name, the surname unless that does not appear (“Pickering” rather than “Marvin L. Pickering”, but “Marvin P.” if the surname is not given).  This practice can stumble over Chinese, Vietnamese, and Korean names when they appear in traditional sequence.
  • Shrink longer procedural phrases (in English) to a short set of Latin equivalents (“In the Matter of Buddy Lynn Whittington, Petitioner” becoming “In re Whittington”).
  • Limit designations of business organization to the first (which would lop the “Inc.” off “Rural Telephone Service Co., Inc.”).

And so on.

3. Compressing What Is Left through Abbreviation: The Bluebook (and ALWD Citation Manual)

The Bluebook takes an aggressive approach to further party name reduction.  It directs that some 144 words that may appear in a business, non-profit, or public entity’s name be abbreviated and prescribes the abbreviation to be used for each.  Actually, the number is larger than 144 since some entries are word families – that is two or more words with the same root, treated as one, “Transport” and “Transportation”, for example.  Words not on the list may, the manual says, be abbreviated so long as they contain eight letters or more and the abbreviation would save “substantial” space.  Any word on the list, however, must “always” be abbreviated “even if the word is the first in a party’s name.”  (Rule 10.2.2.)  (Prior to 2000 The Bluebook spared the first word, but the seventeenth edition ended that dispensation.)  Applying these Bluebook rules to Feist compresses the case name by nearly one-third to Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.  The ALWD Citation Manual, which achieves the same result in this and most other cases, contains an even more extensive list of abbreviations.  (Striking a very different balance, The University of Chicago Manual of Legal Citation pronounces that “Abbreviations in case names are rarely used.”)

4. The Bluebook’s Limited Influence on This Point

Of the many respects in which the styles prescribed by The Bluebook and the remarkably similar ALWD Citation Manual fail to reflect the diversity of citation formats in the professional writing of lawyers and judges, this may be the most conspicuous.  Style manuals governing judicial writing in important states exhibit quite different levels of enthusiasm for case name compaction (shorter lists, a first word exemption).  Some add words.  Some specify different abbreviations for words on The Bluebook list.

While the rules of appellate practice in a small number of states (Delaware, New Mexico, North Carolina) do appear to direct that case citations in memoranda and briefs conform to the style set forth in The Bluebook, both context and the citation practices of those very courts cast doubt on whether their directives were intended to extend beyond the cite, date, and court components of a case citation to case name abbreviation.  Moreover, in several instances (Alabama, California, Idaho) where a court rule refers to Bluebook style, it also authorizes use of one or more alternative citation guides or speaks of The Bluebook as providing guidance (South Carolina).  In most U.S. jurisdictions, including the federal courts, there are no directives that can reasonably be construed as requiring the use of The Bluebook’s case name abbreviations.  An FAQ at the Supreme Court’s web site states quite explicitly: “The Supreme Court does not have a style manual for advocates before the Court.”  It goes on to suggest those seeking guidance might “search Supreme Court materials for citation to a similar document.”

5. The Supreme Court’s Approach

Anyone following that advice will quickly realize that on this point, as on so many others, the Supreme Court’s citations do not conform to The Bluebook.  To begin, the Court does not abbreviate the first word of party names.  A recent citation of an earlier Supreme Court decision identifies the case as Federal Election Comm’n v. National Conservative Political Action Comm., 470 U.S. 480 (1985).  Per The Bluebook both “Federal” and “National” should be abbreviated.  Indeed, the length of both “Conservative” and “Political” make them candidates for elective abbreviation.  In other respects as well the Court exhibits a gentler approach to abbreviation.  There are numerous words on The Bluebook list it does not regularly abbreviate.  The Supreme Court’s subsequent citations of “Feist” consistently render its case name, which contains three words on The Bluebook’s mandatory list (“Publications”, “Telephone”, and “Service”), as Feist Publications, Inc. v. Rural Telephone Service Co.  A recent citation of Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968) abbreviates neither “Township” nor “School” as The Bluebook directs.  Even more significantly, the Court’s citation includes both the name of the township and county which The Bluebook would drop.  It also employs “Cty.” rather than The Bluebook’s “Cnty.” for “County”.  Another case recently cited by the Court is Bank of America Nat. Trust and Sav. Assn. v. 203 North LaSalle Street Partnership, 526 U.S. 434 (1999).  According to The Bluebook that case name should be shrunk to Bank of Am. Nat’l Trust & Sav. Ass’n v. 203 N. Lasalle St. P’ship.  In short, there is only limited correspondence, in degree or detail, between Supreme Court’s use of abbreviations in citations to its own precedent and The Bluebook rules.  Some of the federal circuit and district courts follow the Supreme Court’s lead in this area; many do not.

6. Fifty States, Diverse Styles

A. New York Style

New York’s reporter of decisions has a published style manual.  Since the state’s Law Reporting Bureaus oversees the publication of decisions of New York’s intermediate appellate courts and some trial decisions as well that manual guides the writing of judges throughout the state and indirectly influences the citation practices of lawyers submitting memoranda and briefs to them.  While the New York manual shares The Bluebook’s enthusiasm for abbreviation, containing an even longer list, it takes a different position on one point of style on which reasonable minds (and therefore citation practices) can easily differ.  In forming abbreviations, The Bluebook favors contractions (e.g., “Eng’r” and “Int’l”, though curiously “Envtl.”). Prior to the fourth edition, the competing ALWD Citation Manual used no apostrophes; all its abbreviations ended with periods (e.g., “Engr.” and “Intl.”).  Its fourth edition authorizes use of contractions as an alternative (e.g., “Engr.” or “Eng’r”, “Intl.” or “Int’l”).  Judging from the advance publicity, the stance of the forthcoming fifth edition is likely to be at least as deferential to The Bluebook on this esthetic matter.  But New York courts are not.  With only two exceptions New York style ends abbreviations with a period.  In New York it is “Assn.” not “Ass’n”, “Commr.” not “Comm’r”, “Govt.” not “Gov’t”, “Intl.” not “Int’l”, and so on.

B. Massachusetts and Illinois

The Massachusetts style manual sides with The Bluebook on contractions.  The Illinois manual also agrees that “Association” should be reduced to “Ass’n” but like the University of Chicago manual, it calls for very little abbreviation.  Illinois style restricts case name abbreviations to “Association” and ten other words.  Even words on this short list are to be written in full if they are “the first word in the name of a party.”

C. Michigan

If New York favors periods, Michigan rejects them as altogether unnecessary.  The Michigan Uniform System of Citation includes a number of contractions (e.g., “Ass’n”, “Comm’r”, “Int’l”) but trims the concluding period off all abbreviations.  “Brothers” is “Bros”, “Construction”, “Constr”, and so on.

D. Oregon and California

Oregon’s approach to case names rests on the editorial norms of the source.  Rather than imposing a set of its own abbreviation rules, the Oregon manual incorporates those of the cited jurisdiction by providing that case names be drawn from the running heads of the case’s official reporter or failing that the regional reporter in which it appears.  During the print era this rule, which gives up on uniformity, had the advantage of simplicity.  Now that few writers rely on print reporters, with many actually lacking reasonable access to them, the rule’s explicit prohibition on using Westlaw or LEXIS (or presumably any other electronic source) “as a source for the official case name” is manifestly an anachronism.  By contrast, the California Style Manual steps into the modern era.  Its section 1:1 provides: “Follow exactly the shortened title used in the running head of a paper-based reporter or a shortened title shown in a computer-based source.” (Emphasis added.)

7. What Approach Should the Writer of a Brief or Memo Adopt?

What should an attorney to do in the face of so many different approaches?

A. Be Consistent

First: Be consistent.  California has a distinctive style manual.  A court rule calls for citations to conform to it or, alternatively, to The Bluebook.  It concludes, however: “The same style must be used consistently throughout the document.”

That is a sound principle in any jurisdiction.  In states like Illinois, Massachusetts, Michigan, New York, and Oregon where judges follow a clear set of abbreviation norms, but lawyers are not directed to adhere to them, the prudent lawyer employs some set of abbreviation principles consistently.  Convenience to the judge may argue for employing the state’s distinctive style, while law school training, available software tools, or the citations provided by the writer’s preferred case law database may point another direction.  A failure to adhere to a single, consistent approach throughout a piece of writing is far more likely to create a negative impression of care than a lawyer’s particular choice of style.

B. Routinize the Process

Second: Avoid devoting serious time to what ought to be routine.  Some find it possible to internalize that routine.  But consistent use of a single digital source for case law should do most if not all of the job.  The major services all impose an acceptable measure of case name uniformity across courts and jurisdictions.  Some make it easier than others to copy the complete citation of a retrieved case, including their rendering of its name, but at worst the step requires a simple block and copy of a case’s title or listing.  Without marketing the fact, Lexis has long provided case names that conformed to Bluebook citation norms (e.g., Bank of Am. Nat’l Trust & Sav. Ass’n v. 203 N. Lasalle St. P’ship).  WestlawClassic conforms to National Reporter System style (e.g., Bank of America Nat. Trust and Sav. Ass’n v. 203 North LaSalle Street Partnership).

lexisadv

westlawnextWestlawNext and Lexis Advance provide ease of citation extraction as a feature, coupled with a measure of style selection.  With WestlawNext the style selected affects how the case name is abbreviated.  In both services “Standard” citation format (code name for Bluebook) is the default but not the sole option.  Presumably, The Bluebook’s registered trademark prevents their identifying its style using the name by which we all know it.

There are also a variety of software tools that offer case name abbreviation along with citation checking and reformatting, but they are a topic large enough to warrant treatment in a later post.