In summary, HyperLaw commends the ABA committee for its draft report. As HyperLaw's President Alan D. Sugarman (sugarman@hyperlaw.com) was quoted in a San Fransisco Daily Journal article by James Evans dated March 20, 1996, "[The report] is very positive from my point of view...The Committee seems to have analyzed the issues well. Some things need to be looked at closer, but generally the ABA is heading in the right direction."
Regardless of whether or when jurisdictions adopt Recommendation 1, the Task Force encourages all jurisdictions [to] begin to number their decisions by paragraphs, and to allow citation to paragraph numbers.The ABA Draft is not clear at ¶35 as to whether it is following the AALL recommendation. The ABA proposed recommendation (as distinguished from the Report) certainly is not as explicit at the AALL recomendation. This is important because some jurisdiction presently have public domain official reporters and citations, and may initially find it practical to only adopt the paragraph numbering recommendation.
The ABA Draft in ¶39 uses the following example:
Three years after release of its slip opinions the United States Supreme Court releases the final print United States Reports, but the Court does not release at that time (or subsequently) its electronic version of those reports.Only one of the ninety-four United States District Courts maintains an electronic bulletin board of its opinions, even though almost all such opinions are in electronic form.
It is also inappropriate for the Committee to promote specific commercial products, especially when most of those products are vaporware, and many of those vaporware products presently are available from other vendors. For example, HyperLaw was the first publisher to offer a federal appellate CD-ROM, in 1993, and since that time has published 12 quarterly releases. See HyperLaw Products.
"We acknowledge that the use of sequential numbers or even docket numbers to identify opinions will in some situations be more cumbersome in print than in an electronic environment, especially in multi-court jurisdictions. However, we are recommending a system for the future where case law will be accessed primarily from electronic media. We believe the disadvantages that may exist in print media are far outweighed by the present and future benefits that will result from identifying opinions by a number. We believe that continuing to permit the use of a parallel citation to the opinion will also serve to ameliorate any problems. Moreover, we urge publishers to develop alternative CD-ROM products that more closely emulate books for those traditionalist users who prefer the look and feel of print opinions from books."
First, the ABA Committee format for the name of the court contains no spaces and parantheses. This will make for better computer retrieval in the typical indexing system which will index SDNY as a single "word" as opposed to the numerous "words" in the AALL citations. We also think there will be fewer typographical errors by using a more concise format.
Second, the ABA Committee's citation format may be readily converted to a computer file name: i.e., 1996SDNY15. This will permit so called Internet "search engines" to provide a location for all files with the file name 1996SDNY15 and will permit concise URL's. The same cannot be said for the AALL format.
In short, the ABA format is far more workable in the computer environment, as compared to the AALL format. Technology is one of the motivating reasons for going through the pain of a new citation system. A new citation form should specifically accomodate the technological environment.
Examples are:
The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association.
This is a preliminary draft distributed for public comment by the Special Committee on Citation Issues of the American Bar Association. While it represents the present views of the committee, it will be revised before submission to the Board of Governors and the House of Delegates of the Association. Comments will be received until April 22, 1996. The final report of the committee will be submitted by May 29, 1996, and is expected to be considered by the Board of Governors and the House of Delegates at the annual meeting of the Association in August, 1996. Comments may be sent to the committee's staff director:
Ms. Marilyn Steinke
American Bar Association
750 North Lake Shore Drive
Chicago, Illinois 60611
Voice 312/988-5650
FAX 312/988-6230
Fifteen copies of the comments and two duplicate disks containing any word processing files available for the comments should be sent if possible. This will assist greatly in making the comments available to the committee members.
¶1
The Special Committee on Citation Issues submits the following report concerning its recommendation to the House of Delegates:
¶2
In recent years, growing numbers of court opinions have become available soon after their release, through electronic publication on computer bulletin boards, discs, and the Internet. The traditional method of citing to volume and page numbers in printed reports cannot be used effectively for these opinions because the printed reports typically are not published until considerably later. 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.
¶3
The Board of Governors recognized the importance of avoiding a proliferation of varying citation systems and created this committee at the ABA Annual Meeting in August, 1995. The charge to the committee was:
¶4
The committee posted notices of its work on the ABA Network home page on the Internet and wrote to invite written submissions by interested individuals, ABA sections and divisions, state bar associations, state and federal judiciaries, the editors of the two leading citation manuals, publishers of legal opinions, law libraries, and other entities who had previously worked with citation issues. The first invitation was issued on October 17, 1995, and the period for submissions extended until May 5, 1996. Exhibit A lists the individuals and entities who submitted substantive information to the committee.
¶5
Based on the written submissions received by November
20, 1995, the committee selected entities and individuals to provide further information in oral presentations in Chicago on December 8, 1995. Those invited to make presentations represented the entire spectrum of views as to positions the ABA should take concerning citation issues. The following entities and individuals made presentations:
¶6
The committee drafted an initial outline of its report based on the written submissions received and the oral presentations at its meeting on December 8, 1995. After a number of revisions, a draft report was distributed for public comment on March 18, 1996. Copies were sent to all who had submitted material to the committee and to all who requested a copy.
¶7
The committee took into consideration all of the information and comments it received by May 5, 1996, and prepared this final report with recommendations for consideration by the Board of Governors and House of Delegates at the 1996 ABA Annual meeting.
¶8
The committee was fortunate to have the benefit of the advice of liaisons from other organizations with particular expertise and interest in citation issues. These liaisons were:
RECOMMENDATION
BE IT RESOLVED, that the American Bar Association 1
recommends that: 2
3
1. All jurisdictions adopt a system for citation to 4
case reports that is equally effective for printed case 5
reports and for case reports electronically published on 6
computer discs or network services, that system consisting of 7
the following key elements: 8
9
A. The court should include the distinctive sequential 10
case number described in paragraph C below in each decision 11
at the time it is made available to the public. 12
13
B. The paragraphs in each decision should be numbered. 14
15
C. The court should require all case authorities to be 16
cited by stating the year, a designator of the court, the 17
sequential number of the decision, and where reference is to 18
specific material within the decision, the paragraph number 19
at which that material appears. 20
21
D. Until electronic publications of case reports become 22
generally available to and commonly relied upon by courts and 23
lawyers in the jurisdiction, the court should strongly 24
encourage parallel citations, in addition to the primary 25
citation described in paragraph C above, to commonly used 26
printed case reports. When a cited authority is not available 27
in those printed case reports, the court should require 28
counsel to provide printed copies to opposing counsel and to 29
the court. The parallel citation should only be to the first 30
page of the report and parallel pinpoint citations should not 31
be required. 32
33
E. An example of the recommended form of citation for a 34
decision in a federal district court is: 35
36
1996 SDNY 15, 26, 23 U.S.P.Q. 456. 37
38
In this citation, 1996 is the year of the decision; SDNY refers 39
to the United States District Court for the Southern District 40
of New York; 15 indicates that this citation is to the 15th 41
decision released by the court in the year; 26 is the paragraph 42
number where the material referred to is located, and the 43
remainder is the parallel citation to the volume and page in 44
the printed case report where the decision may also be found. 45
I. Charge to the committee.
The 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.
II. The committee's study of citation issues.
The liaison members participated fully in the meetings and discussions of the committee, but did not take any part in the decisions of the committee as to its report and recommendations. The members of the committee, who were solely responsible for these decisions, and the entities from which they were drawn were:
III. Summary of the Committee's Conclusions
¶9
As directed by the Board of Governors, the committee evaluated the citation issues which were raised in the written and oral submissions it received. The primary issue of concern was whether or not the committee should recommend a new citation system which is not limited to references to volume and page numbers in printed case reports.
¶10 Comments submitted to the committee showed substantial agreement on certain core points. While preferences were expressed for one form of citation or another, there is general recognition that courts should be and are free to prescribe a preferred or mandatory citation method, including new methods which do not rely on the traditional system of citing to volume and page numbers in printed reports. (E.g., West Publishing's Statement of Position to the American Bar Association Citation Issues Committee, p. 12 (Nov. 17, 1995.)) There also is general agreement that substantial uniformity of citation systems should be encouraged for all jurisdictions. The major point of disagreement is whether or not parallel citations to a specific source, such as Lexis, Westlaw, or the West National Reporter System, should be required in addition to a "generic" and medium neutral citation. (Id.)
¶11 Based upon the information it received, the committee recommends that courts adopt a universal citation system using sequential case numbers for each year and internal paragraph numbers within the decision, these numbers being assigned by the issuing court and included in the decision at the time it is made publicly available by the court. The committee also recommends that parallel citations to commonly used print sources be strongly encouraged. This citation system is equally adaptable to printed and electronic case reports and is thus medium neutral.
¶12 The existing citation system is based on a volume and page citation to a printed report of decisions. Some jurisdictions have official reports and a number of commercial vendors offer printed reports. These printed reports have earned universal acceptance by courts and lawyers, and a change in this citation system cannot be suggested absent a clear and convincing reason. The committee has no doubt that such a reason exists.
¶13 In recent years, computer-based technology has added capabilities which are now commonly recognized as offering significant improvements in the way that legal authorities are published and disseminated. Few courts still use typewriters. Decisions are largely prepared on computer word processors. As a result, decisions are generated as computer files that can be made available on online computer databases in a few hours instead of the several weeks that are often required to produce printed reports.
¶14 In addition to substantial improvement in the speed of publication, electronic publishing offers significant reductions in the bulk of case reports. Reports that would require hundreds of volumes to print can be stored on a CD-ROM disc far smaller than a paper back book, allowing a lawyer to carry a library and a computer to read it in a briefcase.
¶15 Another important factor is cost. For sole practitioners and small firms as well as for large firms, the current economic pressures on law practice demand that overhead costs be controlled. The cost of making legal research material available is therefore a key issue for most lawyers. The cost of a CD ROM library is often a small fraction of the cost of a printed library and the space it occupies. This makes extensive collections of case reports widely available in smaller towns as well as in the cities, and significantly decreases the cost of those reports.
¶16 The committee recognizes that many lawyers prefer to use printed case reports for legal research, and that printed reports likely may remain the preferred source for some time. Just as clearly, a number of examples demonstrate that the publication of case reports is beginning to respond at an accelerating pace to the lower cost and more prompt availability of material that electronic publication makes possible. As of January 1, 1996, the federal judiciary was
"in its seventh year offering various electronic public access services to federal court information. . . . The federal courts expect to complete the installation of an electronic public access service into every federal appellate, district, and bankruptcy court within the next several months. . . . All federal circuit courts now offer public users electronic access to appellate court decisions (slip opinions) and other court information . . . ."(Directory of Electronic Public Access Services, U.S. Federal Courts Home Page, Internet, http://www. uscourts.gov.) All new circuit court opinions are now available on searchable databases soon after they are released. Some law journals are now published only on the Internet, and not in print. South Dakota is an example in which electronic publication of case reports by a state bar association has made inexpensive libraries available to all lawyers in the state at a modest cost. At least one publisher of CDROM case reports has said "we are in the process of expanding our coverage to all 50 states and adding federal coverage as well." (Brochure, LOIS, Inc., page 3, January 1996.)
¶17 Examples such as these have convinced the committee that the continued growth of electronic publication of case reports is certain. It is clear that citation methods which are satisfactory for printed reporters are not well suited to electronic databases and reporters. The volume and page numbers which describe very naturally where material can be located in printed reporters are not meaningful or convenient to apply to computer files, which are far more easily indexed sequentially as they are released. In addition, requiring electronic reports to use the page numbers from printed reports is impractical since those page numbers are not available until quite some time after the electronic report is published. The adoption of a new citation method is essential to allow electronic publication of case reports to reach its full potential.
¶18 The committee concludes that it will be necessary to adopt a new citation system suited as well to print publication as to electronic publication. This new system should be medium neutral in that it should be as easily used with printed reports as with electronic reports. The principal objective is to enhance the use of all forms of case reports, and not at all to impede the use of printed reports.
¶20 There are clear advantages to using a consistent locator system for printed reports and for electronic reports. This will allow lawyers and others to use the types of reports that best suit their needs and preferences, and to use the same citations in the works of a variety of publishers of printed and electronic reports.
¶21 The use of a universal citation system throughout all jurisdictions also has clear advantages. The free flow of commerce encourages interstate business operations and the result is that lawyers often practice in many different jurisdictions and courts increasingly take advantage of reasoned decisions from other jurisdictions. A system of universal, permanent, immediately available citations for electronic media will greatly ease the burden of those users.
¶22 Some have suggested that reports be cited by case docket numbers since these numbers could be used for electronic reports as well as for printed reports. This choice would entail several disadvantages, the most significant of which is that multiple decisions in a case would produce multiple reports with the same citation.
¶23 We recommend that each court assign distinctive sequential indexing numbers to opinions it decides should be released for general distribution to the public. These sequential numbers can be used easily both in electronic reporters and in printed reporters.
¶24 The committee recommends a universal system of citing to a decision by stating the year, a unique designator selected by the court, and a sequential number assigned to the decision <FNR24.1> This combination of identifiers creates a unique designation of that decision. The committee suggests that all jurisdictions adopt the mandatory use of this universal citation system.
Each jurisdiction will decide which of its decisions will receive a sequential number designation. See ¶ 29.
¶25 Examples of the universal citation form are:
¶26 Federal administrative tribunals would use analogous forms, such as:
¶27 In the state courts, the states should be identified by the standard two letter postal codes. Examples of the universal citation form for state courts are:
¶28 The committee recommends the use of this citation form by all state and federal appellate courts and trial courts for which case reports are customarily published.
¶29 The committee concludes that the courts in which the cases are decided should control the assignment of sequential case numbers.
¶30 The committee recommends that each court assign a sequential number to each decision that the court decides should be released for general distribution to the public. <FNR30.1> The court may also wish to add brief supplemental signals to the universal citation to give additional information such as non-precedential decisions, NP, or "uncitable" decisions, U. <FNR30.2> An example is:
<FNT30.1> All decisions, whether or not assigned a number by the court indicating release for general public distribution, are of course public records and may be obtained by anyone for any purpose from the clerk. <FNT30.2> A decision not to number the decision will not prevent its being cited, to the extent permitted by the forum court, in the same manner as formerly, for example by docket number.
¶32 Location markers in printed case reports have been dependent on the format of the printed text, such as page, column, or line numbers. A selection of one or two columns per page, different page sizes, or different type fonts would change the location marker at which particular text appears within the report in various editions or formats.
¶33 For electronic case reports, the location markers used for printed reports are less meaningful. In a word processing file, for example, the page, column, or line location can be changed immediately by selecting different fonts or margins in the software. Fixed locators independent of formatting may be specified in many ways, such as by an arbitrary sequential number inserted after each 100 words of the report, but most readers feel that these arbitrary markers detract from printed reports.
¶34 One locator as suitable for printed reports as for electronic reports is the beginning of a paragraph. The committee concludes that the use of sequential paragraph numbers, such as those used in this report, within case reports offers a universal locator for case reports independent of the medium. Paragraph numbers can be applied easily, whether manually or through the use of a macro in a word processing program. If errors occur, the result would merely be that the locator is not quite as precise as it might be, so that multiple paragraphs fall within a single paragraph number, or that a single paragraph may be assigned more than one number. In either event the locator is still considerably more precise than a page number in a printed report and therefore is more usable.
¶35 The committee recommends that all jurisdictions adopt the use of paragraph numbers assigned by the court within case reports as locator markers. The paragraph numbers should become part of the official text of the opinion. <FNR35.1>
<FNT35.1>. The use of the paragraph numbers is discussed in ¶39 below.
¶36 Any new citation system must be designed to ease, not impede, the access of courts and lawyers to case reports. The system therefore should maximize the utility and comfort of the citation system for those who prefer printed case reports and for those who prefer electronic case reports. The committee's approach to its recommendation concerning parallel citations reflects this commitment.
¶37 The committee is convinced that over time, primary reliance on printed case reports will shift to primary reliance on electronic case reports. The duration of this transition period is likely to be determined by the reaction of the legal market. During the transition period, the committee recommends that in addition to the universal citation, all jurisdictions strongly encourage parallel citation to a print source, if there is one that is commonly used in the jurisdiction. Examples are a parallel citation to U.S.P.Q. (United States Patent Quarterly), the West National Reporter System, an official court reporter, and the BNA Labor Relations Reporter. If the report is not available in commonly used printed reporters, the committee recommends that the court require copies of the decision to be furnished to the court and opposing counsel.
¶38 The parallel citation should be to the beginning of the case report in the format employed by the print source. The committee recommends that pinpoint citation not be required in the parallel citation. If the source contains the paragraph numbers assigned by the court, the paragraph number in the primary citation will pinpoint the reference in the parallel source. If not, the pinpoint can be determined with minimal effort by manual counting.
¶39 Examples of the recommended parallel citation form are:
ABA Special Committee on Citation Issues
March 18, 1996