March 25, 1997 HyperLaw, Inc.®

HyperLaw Icon Letter dated March 14, 1997 from Michael E. Gans, Clerk of the Court, United States Court of Appeals, For the Eighth Circuit, Appellate Court Clerk's Advisory Committee

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Letter dated March 14, 1997 from Michael E. Gans, Clerk of the Court, United States Court of Appeals For the Eighth Circuit, Appellate Court Clerk's Advisory Committee See HyperLaw Letter to Clerk, Eighth Circuit Re ABA Citation Proposal, March 28, 1997.

United States Court of Appeals
For the Eighth Circuit
U.S. Court & Custom House
114 Market Street
St. Louis, MO  63101

Michael E. Gans
Clerk of the Court
                                   March 14, 1997 
Mr. John Hehman 
Chief, Appellate Court and 
Circuit Administration Division 
ATTN: ABA Citation Resolution 
Administrative Office of the 
United States Courts 
Washington, D.C. 20544 

     Re: ABA Citation Resolution 
Dear Mr. Hehman: 

     A number of the federal circuit clerks have asked me, as chair 
of the Appellate Court Clerk's Advisory Committee, to submit the 
following comments on the ABA resolution on case citation for 
consideration by the Policy and Programs Subcommittee of the Judicial 
Conference Committee on Automation and Technology. I should note that 
while the positions expressed in this letter represent the views of 
the majority of the circuit court clerks, some clerks were not able 
to sign on to the letter because their courts were still discussing 
the resolution at the time this letter was prepared. 

     In summary, we dispute the need for the alternative case 
citation system proposed in the ABA's resolution. We believe "Blue 
Book" citation of unpublished opinions (by case number, court and 
date) is still the most effective method for citing electronically 
reported opinions. We strongly oppose the creation of an opinion 
citation system which identifies opinions by anything other than the 
case number assigned by the issuing court. The remainder of this 
letter will outline the reasons for our positions and note some other 
concerns we have been regarding the ABA resolution. 

     We wish to begin our discussion by noting that we have strongly 
supported the electronic dissemination of federal appellate court 
opinions. The federal courts of appeals have taken the lead in the 
development of electronic bulletin board systems for the distribution 
of opinions and case-related information. Currently, lawyers and 
researchers throughout the nation use these systems to retrieve 
circuit court opinions. Additionally, we have actively participated 
with a consortium of law schools around the country to make the 
courts' opinions accessible through the Internet. This project has 
made opinions available without charge to literally millions of 
computer users around the world. As a result of these two efforts, 
federal appellate court opinions are more widely available than ever 
before. So we approach the ABA resolution with a wealth of practical 
experience as to how electronic distribution systems work and how 
these cases are cited. 

     We would also like to note that the issue of an alternative 
citation system for opinions was addressed by the appellate court 
clerks and the Judicial Conference of the United States several years 
ago. At that time the clerks unanimously recommended rejection of a 
proposal very similar to the ABA's current resolution. The Judicial 
Conference eventually voted to reject the proposal. We also offered 
comments last April to the ABA committee which was working on the 
current resolution; in those comments we strongly opposed the 

     Our experience since we first addressed this issue has confirmed 
our belief that an alternative citation system based on sequential 
opinion number is not needed in the federal courts. Neither attorneys 
practicing in our courts nor judges researching and writing opinions 
have expressed the view that the current system of citation based on 
case number, date of issuance and court hinders their use or citation 
of federal court opinions. Likewise, no judge or attorney has ever 
expressed to any of us any desire to adopt a citation system such as 
the one proposed in the ABA resolution. In our opinion, the proposal 
to create a citation system based on sequential opinion numbers is a 
solution in search of a problem. 

     Assuming for the sake of argument that a new system of citing 
opinions is required because of the widespread use of electronic case 
reports, it has always been our position that the system must be 
based on the case number assigned by the issuing court. We take this 
position for several reasons. 

     First, the issuing court case number is the key to the history 
of the case, its current status and all of the documents in the 
appeal. An opinion identifier which does not include the actual case 
number of the appeals is, by itself meaningless. A reader who has 
only the sequential number will always have to take an additional 
step to determine the case number before the file or procedural 
history of the case can be accessed. In effect, reliance on a 
sequential number to identify opinions requires use of a "key" to 
translate the opinion number into a case number. This is especially 
important now that the courts offer on-line access to docket 
information. Future plans to create on-line access to the actual 
documents in the case file will make the case number even more 
critical to researchers. 

     Several key questions about this translating key are not 
answered by the ABA's resolution. Who will create and maintain the 
key? How will researchers access it? How long will it have to be 
maintained for future readers' use? We think the answers to these 
questions are that the clerks of the circuit courts will be required 
to create and maintain these keys, that we will have to provide the 
information to users through our existing staffs and resources, and 
that we will have to maintain the keys forever. 

     All of the circuits are currently making do with reduced staff 
allocations. Many of us are struggling to maintain the high level of 
service we provide the bar and the public. In this environment, any 
suggestion for a change in procedures which requires the expenditure 
of additional resources and staff time must be carefully examined. A 
change should only be implemented when a persuasive case can be made 
that the change will improve the service we offer the bench, the bar, 
and the public. We believe that the creation of a case citation 
system based on a sequential opinion number does not meet this test. 

     Second, the use of a sequential number to identify opinions 
complicates our internal operations. Each clerk's office will have to 
create and maintain new databases to track this information, and we 
will have to train deputies in their use. Additionally, some courts 
have opinion issuance procedures and agreements with printing vendors 
which would cause confusion with respect to the date of issuance if a 
sequential numbering system is adopted. For example the Fifth Circuit 
designates certain opinions for issuance through their printer only, 
while others issue in manuscript form. The opinions issued through 
the printer are actually released some time after they are received 
in the clerk's office due to their printing schedule and, as a 
result, their numbering would fall outside the numbering sequence 
anticipated by the ABA resolution. 

     Third, we believe the sequential identifier is no simpler to use 
than a case number identifier. For example, nearly all of the 
circuits issue more than a thousand opinions a year. Is 1997 8th Cir. 
1234U any easier to use or remember than the current system based on 
case number, court and date of issuance? The difference between the 
two forms of citation is simply not significant enough to justify the 
loss of the important information provided by a citation which 
includes the actual case number and the date of issuance. 

     Finally, the actual date of issuance of information contained in 
the current form of citation is important to many users, as it 
provides direct access to information on our opinion bulletin board 
and Internet sites, nearly all of which organize opinion directories 
by date of issuance. 

     We hope the Subcommittee will carefully examine the use of a 
citation system based on sequential opinion identifiers which are 
unrelated to case number. We would be happy to provide additional 
information about its impact on our operations or answer any specific 
questions the Subcommittee might have. 

     We also have concerns with two other provisions of the ABA 

     First we object to the provision that the courts should add 
paragraph numbers to the opinions. We believe this would entail 
substantial additional work for chambers and for clerks' offices. In 
our opinion the court should be responsible for the text of the 
opinion and initial page numbering, and all other services, including 
paragraph numbering, should be left to the marketplace. 

     Second, the resolution does away with the current practice of 
providing a parallel pinpoint cite to the Federal Reporter citation. 
For the foreseeable future, the Federal Reporter will continue to be 
a significant research tool for judges, lawyers, prisoners and other 
pro se litigants. Eliminating the parallel pinpoint cite leaves many 
readers either greatly inconvenienced or at a significant 
disadvantage, while including it requires little additional effort on 
the part of the writer. Although the ABA may well be correct in its 
prediction that primary reliance for case citation will eventually 
shift to electronic case reports, the clerks believe this day is far 
enough off that parallel pinpoint cites must still be required. 

     When we forwarded our comments to the ABA's Special Committee on 
Citation Issues last April, we invited the Committee to open a 
dialogue with us on issues related to opinion issuance and citation. 
We regret that the Committee did not see fit to respond to our letter 
or address our concerns. As the court officers charged with the 
responsibility for issuance of federal appellate court opinions and 
maintenance of the courts' official records, the clerks of court have 
a vital interest in this topic and are in a pivotal position to help 
shape opinion and practice. We hope that the Committee on Automation 
and Technology will give serious consideration to the concerns 
expressed in this letter. 

     Please let me know if our group can be of any further assistance 
to you or the Committee. 

                                   Michael E. Gans 
                                   Chair, Appellate Court 
                                   Clerks Advisory Committee 
cc: All Circuit Court Clerks