Archive for February, 2014

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

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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).

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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.

 

Oklahoma Makes It Official (But What Does That Signify?)

Thursday, February 13th, 2014

1. “Official” Digital Case Law

For over 16 years Oklahoma appellate courts have attached non-proprietary, print-independent citation data to their decisions at the time of release, placed those decisions online at a public site, and required lawyers to cite state precedent using this contemporary system. Moreover, setting Oklahoma apart from other neutral citation pioneers, the judiciary staff applied neutral citations retrospectively to all prior decisions rendered during the print era, placed copies of them online as well, and encouraged but did not require that they also be cited by the new system.  Until this year, however, the print reports of the National Reporter System remained the “official” version of Oklahoma decisions.  As of January 1, 2014, sixty years after the Oklahoma Supreme Court designated the West Publishing Company as the “official publisher” of its decisions, it revoked that designation.  For decisions of the Oklahoma Supreme Court and the Oklahoma Court of Civil Appeals rendered after that date, the digital files published on the Oklahoma State Courts Network constitute the official versions.  Reflecting the new status, decisions that have become final will now be marked official by “the placement of the respective court’s official seal of authentication” in the upper right hand corner.  See, e.g., Carney v. DirectTV Group, Inc., 2014 OK CIV APP 4.

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The Oklahoma judiciary is not the first to declare electronic versions of its appellate decisions “official.”  It follows Arkansas, Illinois, and New Mexico in taking this step.  In addition there are states that while not making such a declaration nonetheless maintain reliable online collections of final, citable copies of their appellate decisions as Oklahoma did prior to 2014.  Nonetheless, Oklahoma’s recent action set on top of its strong history of electronic publication and viewed alongside the situation in other states that take digital publication seriously invites scrutiny of the implications of declaring a jurisdiction’s electronic case law files “official.”

2. Implications for Citation?

In some cases “official” means “must cite to,” but as applied by the Oklahoma Supreme Court the new label compels no change in case citation.  Ever since 1997 the state has required use of citations embedded in the electronic decision files released by the court and stored at its public web site.  Furthermore, while the Thomson Reuters regional reporter has had its “official” status revoked court rules still call for lawyers to furnish parallel citations to P.3d.   (Since the Oklahoma State Courts Network has, from the beginning, furnished each decision’s regional reporter citation and the rule does not mandate parallel pinpoint citation, that requirement, while unnecessary, imposes no added research burden on the state’s lawyers.)

3. In the Event of Discrepant Texts, the “Official Version” Prevails

Presumably one consequence of the “official” designation is an altered rule for resolving conflicts among versions.  The U.S. Supreme Court web site, which distributes electronic slip opinions on day of decision, and years later, following publication of the final bound volume of the United States Reports, a pdf file of that volume in full, explains “official” in these terms:

Only the printed bound volumes of the United States Reports contain the final, official opinions of the Supreme Court of the United States. In case of discrepancies between a bound volume and the materials included here–or any other version of the same materials, whether print or electronic, official or unofficial–the printed bound volume controls.

In truth in the modern era this meaning of “official” has little occasion for application.  As I observed in a 2011 article about Arkansas’s break with official print reports:

Most legal research and law writing is done without checking key passages drawn from unofficial sources against the version designated as “official.” In those rare cases where discrepancies appear and where they bear directly on the resolution of a critical issue courts generally do not take the literal text of the official publication as dispositive. They weigh other evidence, looking to the context of the contested word, phrase or passage, its consistency with other decisions and whether a typographical error seems probable. [Footnotes omitted.]

4. Having Designated a Public Database as the “Official” Record of Its Decisions, the Court Will Take All Necessary Steps to Assure Its Accuracy

In varying degrees courts fiddle with their decisions in the days and weeks following initial release.  The judicial web sites of some jurisdictions are very clear that one shouldn’t count on such post-release revisions being incorporated into the electronic texts they hold.  A recent example from Indiana illustrates the problems this can generate.

On October 17, 2012, the Indiana Supreme Court issued an opinion in J.M. v. Review Bd. of Indiana Dept. of Workforce Development.  The decision was posted at the web site of Indiana’s judicial branch.  As released footnote 1 of the decision read:

Identities of the claimant and employing unit are generally subject to the confidentiality requirements prescribed in Indiana Code section 22-4-19-6(b) (2007). This confidentiality requirement is expressly implemented as to judicial proceedings by Indiana Administrative Rule 9(G)(1)(b)(xviii).

Less than a month later Indiana’s intermediate appellate court quoted the J.M. case for that proposition.  Sometime later (it being unclear exactly when) the Indiana Supreme Court revised footnote 1 of the J.M. case to read:

Although in this case we kept the claimant and employing unit confidential, our practice going forward will be to keep these parties confidential only if they make an affirmative request as outlined in Recker v. Review Board, 958 N.E.2d 1136, 1138 n.4 (Ind. 2011). As discussed in Recker, an affirmative request must be made for confidentiality.

BUT although the change was communicated to Thomson Reuters for sure and perhaps other publishers, as well, the opinion file at the judicial branch web site remained unaltered.  Now the web site does caution:

Opinions posted here are for informational purposes only. Official copies of opinions are available from West (Thomson/Reuters) or from the Clerk of the Supreme Court, Court of Appeals, and Tax Court.

But the discrepancy between the footnote text in the regional reporter and the original version posted at the court site forced the Court of Appeals in a later case to consider which one to follow.  In Albright v. Review Bd. of Indiana Dept. of Workforce Development, decided on September, 12, 2013, the court concluded that “[a]lthough there is no indication of the supreme court having issued an order that footnote 1 was being amended or entering notice thereof on the official docket maintained by the clerk of the supreme court” and despite its own past precedent relying on the original version, it was obliged to conform to the practice set out in the regional reporter version.  Manifestly, the appeals court was displeased with the failure to flag the revision of the J.M. decision at the judicial web site.  Before long an updated J.M. file appeared at that site.  But reflecting the site’s uncertain function, that revised file purports to be the original 2012 decision, for it carries an image of the Clerk’s seal showing the date October 17, 2012. Only the file’s metadata (“properties”) show that it was modified on October 30, 2013, following the Court of Appeals decision pointing out the discrepancy.

5. Official Digital Case Law and Authentication

Indiana’s failure to track or report opinion revision at the court site highlights the need for official sites to furnish some means of assurance to those relying on their electronic decision texts that they have not been altered, altered either by the court or in the course of redistribution by a legal information service or publisher.  Section 5 of the Uniform Electronic Legal Material Act (UELMA), promulgated in 2011 and now enacted in eight states, requires that public bodies using electronic means to disseminate “official” legal materials provide authentication, namely “a method for the user to determine that the record received by the user … is unaltered.”  While the Act is careful to remain “technology-neutral, leaving it to the enacting state to choose its preferred technology for authentication” it clearly requires more than the insertion of an image of the court’s seal, Oklahoma’s measure for assuring users that a decision file is the “final” and “official version.”  The Indiana example, noted in the prior section, demonstrates how easy it is to change a decision file and reinsert such an image.

Two of the states moving to official digital case law provide authentication in the UELMA sense.  Both Arkansas and New Mexico use digital signatures to do so.  See, e.g., Loveless v. Agee, 2010 Ark. 53 and State v. Sisneros, 2013-NMSC-049.

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An alternative, employed by Utah with its administrative code, is to provide a hash for each official electronic document.  Although these states were not required to provide technical assurance of this sort since, like Oklahoma, none of them has yet adopted the uniform act, their authentication measures illustrate what “official” electronic law reports can and ought to include.

Annotated Bibliography on Neutral Citation and Standardized Markup

Monday, February 10th, 2014

A version 2 of the background document for the effort now underway at OASIS (see prior posts dated Nov. 1, 2013 and Jan. 15, 2014) provides a very useful bibliography on “neutral citation of court cases, statutes, and regulations.”  It, in turn, has drawn comment from F. Tim Knight on Slaw.