!NR March 14, 1997 Appellate Court and Circuit Administration Division ATTN: ABA Citation Resolution Suite 4-512 Administrative Office of the U.S. Courts Washington, D.C. 20544 !EN Ladies and Gentlemen: In accordance with your letter of February 20, 1997, I am writing with regard to the April 3 hearing to be held by the Judicial Conference Policy and Programs Subcommittee concerning the American Bar Association citation policy. During the existence of the ABA Special Committee on Citation Issues from August, 1995, to August, 1996, I served as its chair. I have submitted a written outline describing the information gathered by the citation committee and the process followed by the committee in formulating the recommendation that became the ABA citation policy. The Subcommittee may have questions or requests for further information about the citation committee's work. If so, I will be pleased to make an oral presentation at the April 3 hearing. I would be the only person appearing for this purpose. The subjects I would address are any questions and requests the Subcommittee might have concerning the citation committee's work. The amount of time for this presentation would be at the pleasure of the Subcommittee. I would appear as an individual, and not as a representative of the American Bar Association or any other organization. If the Subcommittee would like to send me questions or requests prior to the date of the hearing, I will be glad to provide advance copies of my testimony to the extent time allows. Communications may be directed to: !NR 404/853-8062 Telecopier -- 404/853-8806 Email -- jdfleming@sablaw.com Please let me know if further information is needed. Sincerely yours, J. D. Fleming, Jr. STATEMENT OF J. D. FLEMING, JR. TO THE JUDICIAL CONFERENCE OF THE UNITED STATES THE ABA'S POLICY ON CITATION SYSTEMS !EN I am submitting these comments as an individual, not as a representative of the American Bar Association or any other organization. I served as chair of the former ABA Special Committee on Citation Issues. The purpose for this submission is to summarize the nature of the information collected and the process followed by the Committee in developing the recommendation that the Association adopted as its policy in August, 1996. I win also be glad to respond to questions or to provide additional information if requested. 1. CREATION OF THE AMERICAN BAR ASSOCIATION SPECIAL COMMITTEE ON CITATION ISSUES. In recent years, growing numbers of court decisions have become available through electronic publication soon after their release. Current decisions of many courts may be obtained free or at a nominal cost from databases maintained by law schools and the courts themselves. Large collections of decisions are published by a number of commercial vendors on computer discs, at a cost substantially less than that of printed reports. A single small disk can hold as much information as many volumes of printed reports. The traditional method of citing to volume and page numbers in printed reports cannot be used effectively for electronic reports because the printed reports, and therefore the volume and page numbers, typically are published weeks and often months after the electronic reports. In an effort to develop citation methods that work effectively both with books and with computer databases, a number of jurisdictions are considering or have recently adopted new citation systems. While there are similarities, these new systems differ significantly among themselves. At the 1995 Annual Meeting of the American Bar Association, the Board of Governors created the Special Committee on Citation Issues in an effort to help avoid a proliferation of varying citation systems across the nation. The Board of Governors direction to the Committee was: "The Special Committee shall (1) evaluate citation issues, inviting views from all ABA entities and organizations active in fields related to legal citation; (b) develop recommendations concerning a citation system which will be broadly acceptable to the bar and to the courts; and (c) recommend action for consideration by the Board of Governors and the House of Delegates at the 1996 Annual Meeting." Since the Committee was given only a year to complete its task, the Board decided that it needed to be a small working group, but that it should include a broad representation from the ABA sections and divisions, the state bars, law schools, and the state and federal judiciary. To achieve this objective, President Roberta Ramo appointed the following members: Robert W. Barger, Immediate Past Chair, ABA Section of Science and Technology (New Jersey). James E. Carbine, Co-chair, Trial Practice Committee, ABA Section of Litigation (Maryland). J. D. Fleming, Jr. (Chair), Former member of the ABA Board of Governors and former Chair, Section of Science and Technology (Georgia). Professor Patricia B. Fry, Council Member, ABA Section of Business Law (North Dakota). Robert E. Hirshon, Chair Elect, ABA Tort and Insurance Practice Section (Maine). Judge Thomas S. Williams, Vice Chair, Court Management and Administration Committee, ABA Judicial Administration Division (Wisconsin). Carolyn B. Witherspoon, President, Arkansas Bar Association (Arkansas). President Ramo also appointed liaison members to the Committee from the following organizations who designated them: Noel J. Augustyn, Administrative Office of the United States Courts Judge Danny J. Boggs, Judicial Conference of the United States Lucian T. Pera, Board of Governors, American Bar Association Rita T. Reusch, American Association of Law Libraries. The liaison members participated fully in the activities of the Committee and gave the Committee the benefit of their views and advice, but did not vote on any proposals before the Committee. In keeping with the policy of the ABA, each voting member of the Committee executed a statement certifying the absence of any material interest in the subject matter being studied by the Committee. Because the liaison members did not vote, they were not asked to submit a conflict statement. 2. THE ABA COMMITTEE'S STUDY. In mid-October, 1995, the Committee sent notices of its assignment to organizations and individuals interested in citation issues and invited the submission of information and comments. From the submissions that were received over the next month, the Committee identified proponents of different views on the issues before the Committee. The Committee invited eight entities and groups, representing the entire spectrum of opinion, to make oral presentations at a meeting in Chicago on December 8, 1995. General argument of positions in these presentations was discouraged since those arguments had already been offered in the written submissions. Instead, the representatives were asked to respond to written questions sent to them by the Committee and to additional questions raised by the Committee during the meeting. A copy of the written questions is attached as Exhibit A. The entities and groups invited, all of whom accepted, were: !NR ABA Section of Intellectual Property Law American Association of Legal Publishers Association of Reporters of Judicial Decisions State Bar of South Dakota Taxpayer Assets Project West Publishing Company Wisconsin State Bar !EN Two members of the Wisconsin State Bar appeared, one representing the state bar itself which had petitioned the Wisconsin Supreme Court to adopt a generic citation approach, and one representing the views of individual members who opposed the position of the Wisconsin State Bar. The December 8 meeting was very helpful to the Committee in developing an understanding of the range of views on citation issues. To expand this understanding, the Committee broadened its invitations to submit comments and recommendations by individual contacts, particularly with the judiciary, and by making widespread distribution of an announcement of the Committee's activities and the schedule for completion of its assignment. A copy of this public announcement is attached as Exhibit B. The Committee's notice was posted on the ABA Network on the Internet and it was widely redistributed from that site by a number of organizations and individuals interested in citation issues. Some created links to the ABA Network site from their own sites and others duplicated the notice and distributed it through newsgroups or the mail. In January, 1996, the Committee sent memos and letters, with a copy of the notice, to many additional organizations to invite the submission of views and comments. The recipients of these additional invitations included the chairs of all ABA sections; the chairs of all ABA divisions; the presidents of all state bars; all members of the Conference of Chief Justices, which is comprised of the chief justices of all states; and the editors of the two leading citation manuals, the Bluebook, published by the Harvard Law Review Association, and the Maroonbook, published by the University of Chicago Law Review. Extensive written submissions were received by the Committee from many sources. The Committee evaluated in detail all submissions received through early March, 1996, and prepared a preliminary report setting out its tentative conclusions and recommendations. 3. THE ABA COMMITTEE'S PRELIMINARY REPORT. In mid-March, 1996, the Committee's preliminary report was released for public comment, along with a notice that additional comments and recommendations submitted by April 22 would be considered by the Committee in formulating its final report and recommendation. The preliminary report was posted in full text on the ABA Network on the Internet and a copy was sent to every person and entity who had submitted comments to the Committee, as well as to a number of additional individuals and organizations, including the Conference of State Court Administrators whose members are the highest court administrators in their states. It was widely republished on the Internet, and a number of legal newspapers and reports printed summaries or the full text of the preliminary report. Copies were sent by the Administrative Office of the United States Courts to all chief judges of the United States Courts, all circuit and district executives, all clerks, all circuit librarians, and other administrative personnel. The distribution of the preliminary report for public comment produced a number of additional submissions to the Committee during the next two months before its final report was completed. The Committee reviewed and considered all information it received up to a few days before its final report was released. While usually advocating one view or another, most submissions to the Committee outlined carefully the reasons for their contentions and data on which the contentions were based, including copies or sources of the data. The Committee was therefore able to evaluate the supporting information for itself well enough to be confident of its conclusions on most of the issues without requesting additional data or undertaking any separate investigation. 4. THE COMMITTEE'S INVESTIGATION OF THE COST OF IMPLEMENTING A PARAGRAPH NUMBERING SYSTEM. There was one very significant exception to the almost uniform availability of supporting data. Some official court reporters and publishers of printed reports argued strongly that the use of a medium neutral citation system based on paragraph numbers would be technically impossible or at least would involve staggering costs, ranging into the hundreds of thousands or even millions of dollars. Some electronic publishers argued equally strongly that using such a system would impose no burdens at all. Almost no specific information was provided to the Committee to support either of these opposing arguments. The Committee therefore found it necessary to gather supplemental information concerning the feasibility of a medium neutral citation system. The path chosen by the Committee was to identify courts that had already attempted to implement citation systems similar to those being considered by the Committee. Two court systems were identified that had substantial experience with providing sequential case and paragraph numbers: Canada and South Dakota. Many courts in Canada began using paragraph numbers by 1990 and the Supreme Court of Canada has numbered paragraphs in its opinions since January of 1995. Paragraph numbering in the opinions of the South Dakota courts began in January of 1996 and in August of 1996, paragraph numbering was begun in the federal district court decisions in South Dakota. The Committee requested and received information from the personnel involved in the implementation and operation of the paragraph numbering system in these courts. Paragraph numbering was begun in Canada with encouragement from the publishers of printed reports. The use of paragraph numbers offered a benefit to the publishers because the paragraph numbers would be the same whether reports were published in French or in English. With citation to page numbers, the printing of reports in both languages was more complicated because identical page numbers would not result simply from mechanical formatting of the text. The Committee was told that publishers in Canada realized net cost savings from the switch to paragraph numbering, and that no publisher had complained about the change, including Carswell, the largest Canadian publisher. Carswell is a subsidiary of Thomson Corporation which is pursing a merger with West Publishing Co. The experience with implementing the new citation system in the Supreme Court of Canada and in South Dakota was quite similar. Training the first secretary in using a word processing macro to place paragraph numbers required only a few hours, and training each additional secretary took less than an hour. The cost of implementing this change was said to be modest, probably less than $2,000. Though this information was not before the ABA Committee, it may be of interest to note that the Maine Supreme Court has now adopted and implemented the citation system recommended by the ABA. Maine's experience with the implementation was very similar to that of the Canadian and South Dakota courts reported above. Maine estimates the typical cost of implementing the new citation system to be below $5,000 including the equipment to prepare the decisions to be made available through the Internet, but its own costs were somewhat lower because it used equipment already on hand instead of purchasing new equipment. The time required to train the secretaries to use the paragraph numbering macro was less than 10 minutes for each. Maine uses Macintosh computers. The Maine, South Dakota, and Supreme Court of Canada decisions are published on the Internet. Currently, the Internet addresses are: !NR Maine -- http:www.courts.state.me.us/mescopin.home.html South Dakota -- http://www.sdbar.org/ Supreme Court of Canada -- http://info.ic.gc.ca/opengov/supreme.court/sc.home.html !EN Paragraph numbering appears in the reports on these sites. In addition, West Publishing Co. now routinely publishes the South Dakota state court opinions in the N.W. 2d reporter, complete with paragraph numbers. Both Lexis and Westlaw include the paragraph numbers in their on-line reports. No difficulty with publishing any of these reports has been reported to my knowledge. 5. BRIEF COMMENTS ON THE ASSIGNMENT OF SEQUENTIAL CASE NUMBERS. The Committee gave less attention to the mechanics of assigning sequential decision numbers. From time to time, the issue was mentioned, but it was approached as a matter of administrative inconvenience that would need to be worked out, and not as a ground for significant objection to a medium neutral system. The Committee thus did not comment on this issue in its report. Some information, however, was gathered on this point. State court personnel did not seem to view the assignment of sequential decision numbers to be a significant problem. Decisions in these courts are usually prepared by a few secretaries and obtaining a number by telephone or email from a clerk was thought to be a reasonable solution. In the federal courts and a few states, units of a single reporting court are in scattered locations and some courts involve a large number of units. These systems may require a more automated method of assigning sequential decision numbers. Several approaches were suggested to the Committee to respond to this need, and three seemed to be quite workable. The first solution would use manual assignment, but at a point in the process after the responsible judge decides that the decision is ready to be released. Until the decision is released to the public, the sequential number is not needed, and the court win probably handle the decision using the docket number in any event. [The Committee concluded that the use of docket numbers for the medium neutral citation would be unsatisfactory. Final Report, paragraph 24. When the court releases the decision, a copy is normally mailed to the parties. Many courts currently release the decision to the public either on computer discs, email, or computer bulletin boards at or shortly after the time it is mailed to the parties. In some courts, hard copies become available to the public when the decision is entered by the clerk. As a practical matter, this release determines the earliest point at which the sequential case number needs to be assigned because the case will not be cited prior to its release to the public. Since the release to the public will usually be handled by one, or at least very few, of the court's computer personnel or clerks, the manual assignment of the case number and the editing of the computer file to add it at the time of release is likely to be practical. The second promising method suggested to the Committee by court administrative personnel involves automated case number assignment. Many, perhaps most, of the larger court systems now maintain computer bulletin boards, such as those in the federal PACER system, and it is likely that all courts will have these systems soon. The Committee was told that all of these bulletin boards are accessed through passwords, and that it would be simple to have a small section of the bulletin board accessible only to authorized court personnel who prepare the final decisions for the court. This section of the bulletin board would display a screen on which the user would type in the docket numbers of the cases for which sequential decision numbers are needed. When the user enters the key to exit the system, the computer would instantly assign decision numbers, increment the stored next decision variable to the next available decision number, output the list of docket and decision numbers to the user, and record the list and the user number in a simple database. If multiple accesses are sought at the same time, the computer would queue them and process them sequentially. Since the computer transaction is extremely simple, the delay time for any user would be quite brief. The programming required for this system was described to the Committee as being elementary. The third method suggested to the Committee is more automated. This method would employ a remote terminal at the desk of each person who prepares final decisions. The terminal could be a less complex version of the card terminals now used universally by commercial establishments around the country to clear credit card transactions through American Express, VISA, and other data processing facilities. When the decision is ready to be released, the terminal would be activated in order to contact a central computer by phone or a network, and the computer would send the next sequential number to be printed or displayed on the terminal, or fed to the user's word processor to be inserted into the decision file. The Committee was told that knowledgeable technical personnel in judicial administration offices consider this approach to be entirely feasible. 6. FILING AND SPONSORSHIP OF THE ABA COMMITTEE'S REPORT AND RECOMMENDATION. The final report and recommendation of the ABA Committee were filed with the ABA House of Delegates as required on May 24, 1996, and it was docketed as Report No. 107. Additional comments and information were received up to the time the House of Delegates opened debate on Report No. 107 on August 7, 1996. All of this information was reviewed and considered by the floor delegation presenting the report before the House. After Report No. 107 was filed with the House, several ABA- related organizations elected to join as co-sponsors. The co-sponsors of the report, in addition to the Committee, were: !NR Atlanta Bar Association Coordinating Commission on Legal Technology Litigation Section Massachusetts Bar Association Milwaukee Bar Association Section of Science and Technology State Bar of South Dakota State Bar of Wisconsin Tort and Insurance Practice Section. !EN 7. CONSIDERATION OF REPORT NO. 107 BY THE ABA HOUSE OF DELEGATES. During the floor debate on Report No. 107, the proponents were representatives of the co-sponsoring organizations. The only organization which spoke in opposition to the adoption of the recommendation was the ABA Section of Intellectual Property Law. The Conference of Chief Justices moved to postpone action indefinitely, but did not oppose the recommendation. These two efforts are discussed briefly in the following paragraphs. The Section of Intellectual Property Law endorsed the recommendation of the adoption of a medium neutral citation system but urged that the new system be an optional alternative to the traditional methods of citation and that disclosure of the actual source used by the writer be required. The proponents of Report No. 107 opposed these recommendations for change on the ground that uniformity requires a single citation system, not optional alternative systems, and that requiring citation of the specific publisher would encumber legal citation without any corresponding benefit. A resolution, a copy of which is attached as Exhibit C, concerning Report No. 107 was proposed by the Conference of Chief Justices Committee on ABA Citation Issues (hereinafter the "COCJ Committee"), composed of five state chief justices, and the Conference adopted the resolution on August 1, 1996. The Conference resolved that the state courts should plan to establish an improved citation system effective for both electronic and print publications. The resolution also criticized the ABA citation committee on the ground that "the ABA committee study did not include or involve consultation with the Conference of Chief Justices prior to the issuance of that report" [the report being considered by the ABA at its August, 1996, meeting] and stated that "the report of the committee inadequately addresses the perceived problems." This was the ground for the motion by the Conference of Chief Justices to postpone consideration of Report No. 107 by the House of Delegates. I spoke in opposition to the motion of the Conference of Chief Justices, summarizing the following previous contacts with the chief justices which we had described in correspondence with the COCJ Committee on April 1 and July 18, 1996, and in several telephone conversations. (1) A chief justice who later became a member of the COCJ Committee was advised of the assignment of the Committee in August, 1995, as an officer of an ABA organization which was being asked to recommend a member. (2) Members of the Committee contacted their own chief justices concerning the Committee's work. (3) The Committee wrote every chief justice on January 26, 1996, describing the Committee's assignment and inviting the "submission of comments and recommendations on citation issues . . . . " A copy of the memorandum is attached as Exhibit D. Responses were received by the Committee from and on behalf of some chief justices. (4) Beginning on April 1, 1996, after the release of the Committee's preliminary report for comment and three weeks before the time by which comments were requested, the ABA Committee wrote the COCJ Committee, sent information it had collected, and spoke with the COCJ Committee several times by telephone. The ABA Committee wrote four letters in which it asked to meet with members of the COCJ Committee in person or by telephone. No responses were received to these letters. In the more than four months the ABA Committee and the COCJ Committee corresponded before the floor debate on Report No. 107, no substantive comments were received from the COCJ on the ABA Committee's preliminary or final reports. For these reasons, I contended that the Conference of Chief Justices had notice of the ABA Committee's assignment and a meaningful opportunity to participate in the development of the Committee's recommendations. Following debate, the House of Delegates defeated the COCJ motion to postpone action by a vote of approximately 2 to 1. The House then voted on the adoption of Report No. 107, and the report was adopted as the policy of the American Bar Association by the affirmative vote of about 85% of the House. 8. CONSIDERATION OF THE ABA CITATION POLICY BY OTHER ENTITIES. I have not followed actively the instances in which courts and other entities have given attention to the ABA Citation Policy, and can only report those that I have run across in casual reading. The recently released 16th edition of the Bluebook, published by the Harvard Law Review Association, provides a citation method in new Rule 10.3.1 that is substantially the same as that called for by the ABA Policy. As previously noted, the Supreme Court of Maine has adopted the system called for by the ABA Policy and is currently using that system in its reports. Several state bar associations have begun procedures to recommend the adoption of the ABA Citation Policy by their courts. I am informed that these include Arkansas, New Jersey, and Tennessee. Additional information about the ABA citation policy can be obtained through the Internet by accessing the home page of the ABA Network at http://www.abanet.org/, then selecting the "Entities" button, then the "Citation Issues, Special Committee on" button. Among the material that can be found through the ABA Network in this manner is an excellent background summary of the development of medium neutral citation systems. "Freeing the Law: Case Reporter Copyright and the Universal Citation System," 24 Fla. St. U. L Rev. 217 (1996). This article is also a superb example of some of the advantages electronic publishing can offer in legal research because it contains links permitting the reader to jump quickly between the text and a footnote referred to in the text, and links giving direct access to a number of statutes, rules, reports, articles, and cases cited in the footnotes. !NR March 14, 1997 J. D. Fleming, Jr. 404/853-8062 FAX 404/853-8806 Email jdfleming@sablaw.com !EN