March 14, 1997 BY E-MAIL Appellate Court and Circuit Administration Division ATTN: ABA Citation Resolution Suite 4-512 Administrative Office of the U.S. Courts Washington, D.C. 20544 Re: Comments on Adoption by the Federal Courts of the Form of Official Citation Recommended by the ABA Resolution on Official Citations Dear Sir or Madam: This letter responds to the Notice of Opportunity to Comment dated February 12, 1997. I drafted the attached "Proposed Plan for Citations in the Virginia Supreme Court and Court of Appeals." The plan acknowledges two practical issues: first, the procedure for adding to each opinion suitable reference points usable for citation; second, changes in the practices of bench and bar in using citations. Addressing these issues in Virginia is less complicated than in the federal courts, but the attached document provides a useful basis for commenting on practical issues likely to face the federal courts. ADDING PARAGRAPH NUMBERS AND SEQUENCE NUMBERS This task is straightforward. However, based upon writing and testing a suitable WordPerfect macro for use by the Clerk of the Virginia Court of Appeals, two observations are worth noting. First, it appeared appropriate to have the macro maintain a cross index of sequence numbers and docket numbers. While a satisfactory paragraph numbering macro was indeed trivial, additional work was required to automate construction of a suitable index1. Such an index was necessary for the clerk to maintain a comprehensive linkage between docket numbers and sequence numbers. Automation was necessary in order to minimize (and in this instance largely avoid) additional workload burdens on the clerk's office. Second, the task of creating this more complex macro was made easier by the consistent format of the opinions. Although the judges are located at a number of different sites throughout the Commonwealth, all are required to use the same word processing program (WordPerfect 5.1) and final formatting is accomplished at the clerk's office in Richmond. It is unlikely that the federal courts will have the advantage of this uniformity, even within districts. Consequently, the task of macro construction will be more difficult. While this difficulty may remain trivial for simple paragraph numbering, a macro providing suitable support for the clerk of court will be more difficult. A clerk may opt for a simpler macro, and elect to use additional staff to construct an index and keep track of sequence numbers. Furthermore, federal districts may require some re-engineering of work flow and practice in order to bring opinions to a common location -- the clerk of court is the logical place -- for adding paragraph and sequence numbers when the opinion is issued to the public. Each such common location can manage its own set of sequence numbers. Although wide area networks (or perhaps an Internet site) could make it possible for multiple locations to use a common set of sequence numbers, we have no need to resort to such techniques in Virginia. USING A UNIFORM CITATION IN PRACTICE The report accompanying the ABA Resolution addresses the various advantages of having the court include citation information in opinions at the time of issuance. The report is thoughtful and thorough, and its discussion need not be repeated here. The essential consequence of following the ABA recommendation is that all who read and use court opinions will have a common frame of reference, regardless of the medium or publisher. Furthermore, to the extent that the chronology of issuance corresponds to the order of publication, sequence numbers in accordance with the ABA recommendation will be usable as a cross reference between different publications, without the need for a separate index. However, for a publisher who adds value to the opinions of the court (for example, by adding head notes) there is no guarantee that the chronology of issuance will precisely track the order in which opinions are ready for publication after the value has been added. Some opinions may take longer to add value than others. This creates no difficulty for electronic publications, but book volumes may be ready for publication when some opinions are not ready, and these opinions would be delayed until a subsequent volume. However, all the opinions which are available at publication time could be placed in sequence number order2. Further, the number of missing opinions may be relatively small, and those opinions could likely be found in the next volume in sequence. A place holding reference to that effect could be included in the prior volume. This brief analysis serves well enough for print publishers who handle Virginia cases alone. A single range for the sequence numbers contained in the volume could be placed on the spine. This may also work tolerably well for publications whose print volumes include several states in addition to Virginia, such as West's Southeastern Reporter. It may even work for a print publisher who combines all federal appellate courts in one series of volumes, such as West's Federal Reporter. But certainly for nearly one hundred federal district courts, each with its own set of sequence numbers, a print volume attempting to cover them all in a single series (such as West's Federal Supplement) would likely require a separate index to locate a case based solely on the Uniform Citation. While the publisher would likely provide such an index, in order to serve the marketplace, an additional step would be required for users of that print publication to locate an opinion3. Therefore, as a matter of comity within the bar, given the wide usage of West's print publications, it makes sense to require parallel citation to West's federal reporters. The ABA Resolution recommends this. However, the Uniform Citation would provide a common "Rosetta Stone" enabling easy automation of parallel cites. The market place will likely respond to ease the burden which such a parallel cite requirement would place on users of electronic publications4. I do not think it likely that West's copyright interests could be leveraged, to place a tax on what should be a very low price for automation of parallel cites to West's products, since even if a copyright claim survives analysis the parallel cite requirement could always be relaxed. Conclusion On balance, it seems evident to me that the benefits of adopting the recommendation of the ABA resolution as the form of official citation for federal court decisions substantially outweigh both the modest inconvenience to users of certain print publications, and the significant but routine steps required to implement the recommendation efficiently. Sincerely yours, Clyde R Christofferson Oakton, Virginia enc. PROPOSED PLAN FOR CITATIONS IN THE VIRGINIA SUPREME COURT AND COURT OF APPEALS Summary: This proposal recommends that the Virginia State Bar implement a three phase plan leading to adoption of a universal citation system by the Supreme Court and Court of Appeals. Background: Under the auspices of the Virginia Supreme Court, opinions issued by the Supreme Court and the Court of Appeals are available electronically on the day of issue or shortly thereafter. This practice has been in place for a number of years, and is the primary means of distribution of opinions to publishers and interested members of the public. Beginning about four years ago, the Legal Network Committee of the Virginia State Bar included this service as part of a larger package of state information services provided to members of the bar. The computer system through which opinions are made available in electronic form (called the Law Office and Public Access System, or LOPAS) is located at the Supreme Court Building on 9th Street in Richmond. In the Supreme Court, opinions are prepared for distribution by the Reporter (Kent Sinclair at the University of Virginia School of Law) and transmitted electronically on the day of issue to the Supreme Court's computer system. Several days later, with the addition of headnotes, the Reporter transmits the opinions to the printer. In the Court of Appeals, judges transmit opinions electronically to the Clerk in Richmond, who prepares them for issuance. Each Tuesday morning the opinions are transmitted electronically to the Supreme Court's computer system, and then to the publisher. The electronic transmission to the Supreme Court's computer system includes three files for each opinion: a word processing file (in the form used at both courts, currently WordPerfect 5.1), a version of the opinion in plain text without word processing codes, and a brief description of the opinion. These three files enable LOPAS to display a brief description of each opinion and provide options to download either the word processing file or the text file. Technical Proposal: The existing system already in place lays the foundation for a simple and inexpensive procedure which would add to each opinion reference points usable for citing opinions, independent of the method of publication. It appears reasonably straightforward to automate the mechanical details with a wordprocessing "macro" (automated sequence of keystrokes), and execute this macro at a single point in the process prior to distribution. At the Supreme Court, the appropriate point is with the Reporter, who makes distribution both to the LOPAS system and to the printer. At the Court of Appeals, the appropriate point is in the Office of the Clerk, just prior to electronic transmission to LOPAS and to the publisher. The Supreme Court has gone to great lengths with LOPAS to ensure that the system operates automatically, with a minimum of staff maintenance. A suitable word processing macro for automating mechanical details is consistent with this approach. It is appropriate first to test such a macro, and arrangements for doing that have already been made with the Clerk of the Court of Appeals. It should be noted that some of the policy decisions discussed below may affect how the macro is implemented and executed. Policy Discussion: The purpose of adding reference points to opinions as issued is to enable lawyers and the courts to more efficiently serve their clients and the public. Providing common reference points, available to all from the beginning, is a simple concept. While the foundations are in place for a simple and inexpensive technical implementation, it is important to lay similar foundations for general acceptance of this concept among bench and bar. Some foundations have already been laid. It was not so many years ago that use of computer technology was uncommon in the law office and in court administration. Now it is generally recognized that use of such technology is helpful, if not necessary, in providing timely services to clients at a reasonable cost and in administering the judicial system within tight budget constraints. The report of the ABA Special Committee on Citation Issues provides further foundation. It is a well thought out and carefully crafted document that should provide a substantial level of comfort to those who have not yet considered these matters in depth. However, the concept will require some change in the day to day habits of lawyers and judges in citing legal precedent. Book volumes and pages are traditional. It is significant that the suggested implementation of the concept uses a format very similar to the traditional volume and page. A four digit year will be distinguishable from a three digit volume number. This is followed by an abbreviation for the court of origin. Instead of a page number, there will be a sequence number. Internal references (pinpoint citations) will be to paragraph numbers. Consequently, finding a cited opinion in a bound volume will require use of indicia other than volume and page numbers. For example, a publisher may print the year, court and sequence number in the outside margin of each page. If the opinions are published in the same order they are issued, finding an opinion using such marginal indicia will be similar to using a phone book or an encyclopedia. The range of sequence numbers contained in a bound volume could be indicated on the spine. Alternatively, a publisher may print an index at the front of each volume showing the volume and page number corresponding to each sequence number. In principle, the chronological order of the sequence number will track the order in which opinions are issued and published. This is the advantage of such sequence numbers over existing docket numbers. Therefore the phonebook or encyclopedia metaphor should fairly suggest how the proposed citation concept will contrast with traditional volume and page references in printed books. Two points are worth emphasizing. First, this approach to the practical task of checking cites is different from the traditional volume and page approach. While not a radical change -- all of us are familiar with using phonebooks and encyclopedias -- it is nonetheless a change. Second, we do not have experience with this approach. While the advantages are evident -- a common reference good for citing and checking cites regardless of where or how opinions are published or distributed -- only experience will provide a suitable level of comfort for many users of traditional print media. For these reasons it makes sense to provide for parallel citation to Virginia Reports and Virginia Court of Appeals Reports, and perhaps also to West's Southeastern Reporter, until experience provides an appropriate level of comfort to the general membership of bench and bar. Parallel pinpoint citation should not be necessary, given common paragraph numbers within the body of the opinion. The ABA Committee's report makes this recommendation as well (see paragraph 37-paragraph 38 of the report). There may be some burden imposed on alternative publishers by a requirement for parallel citation. However, at least some of those publishers are currently including citations -- even internal pagination -- to Virginia Reports and Virginia Court of Appeals Reports as those reports are made available. This is being accomplished manually, at significant expense. By having a common reference in the electronic opinion made available through LOPAS, it should be relatively easy for each publisher to automatically create a cross reference between their own publication and the common reference. Some enterprising vendor or vendors will then be able to use the common reference to create a "Rosetta stone" of cross references to a variety of publications. If this happens, a parallel citation requirement will prove a lesser burden to alternative publishers than under current manual practices. Plan of Action: The foregoing discussion reflects a single unifying theme for dealing with the citation issue: comity and professional courtesy. It makes good sense to consider changing traditional practices if that will assist those practitioners who find it cost effective to use opinions published in electronic media. Similarly, it makes good sense to seek a level of comfort for users of traditional bound volumes by retaining parallel citation to those volumes. In the same spirit, it also makes good sense to encourage publishers who serve the legal profession to participate in a market for cross reference information, a market whose costs will be dramatically reduced by including a common reference in opinions made available through LOPAS. Through all these steps we will better serve our clients and the public. Although the proposed approach to citations is simple, even elegant, it takes traditional practice along a novel path. As with other matters brought to the court, the bar should take the time to lay a proper foundation. Care should be taken to avoid a premature decision by the court. First, test the mechanical details. While it does not appear that this presents significant cost or difficulty, this step will serve to familiarize court officers with necessary procedures and identify any latent practical problems. Second, educate the bar. Raising the matter with bar leadership around the Commonwealth will provide means for focusing discussion on comity and professional courtesy. Bar leadership is likely also to provide a cross section of views typical of the bar generally and perhaps the court as well. During this phase it may be helpful to demonstrate concretely how the additional references will look in the opinions. This could be accomplished by expanding the mechanical test to include LOPAS. Third and finally, after bar leadership is satisfied that the membership and the practice of law in the Commonwealth are likely to be well served, seek court approval for a rule on citations.