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HyperLaw Letter to Clerk, Eighth Circuit Re ABA Citation
Proposal, March 28, 1997
March 28, 1997 Michael E. Gans Clerk of the Court United States Court of Appeals For the Eighth Circuit U.S. Court & Custom House 114 Market Street St. Louis, MO 63101 Dear Mr. Gans: [1] I have reviewed a copy of your letter to the Automation Committee of March 14, 1997 concerning the ABA Citation Resolution. The letter was written by you as chair of the Appellate Court Clerk's Advisory Committee. Your letter does not mention the positive experience of the Third and the Sixth Circuits which have been sequentially numbering opinions for the last several years. [2] I am troubled by your letter because is seeks to provide the impression that the views of the Appellate Clerks were not solicited or evaluated by the ABA Committee. You state in your letter: 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. [3] Unfortunately, the April 1996 appellate clerk comments came six months after the ABA Committee first asked for public comments. Your comments were never made public by your committee. The ABA Committee held public hearings in November, 1995. The Committee's appointment by the President of the American Bar Association was well publicized in August of 1995. There were articles in various legal publications. The hearing was well publicized. West sent over ten people to the meeting. Had you chosen to participate, or file public comments prior to or immediately after the ABA hearing, then your concerns could have been addressed, and, indeed, would have been responded to by others participating in the process -- indeed, I expressed some of your concerns about the docket number. No one at the hearing was able to respond to questions of the ABA Committee as to the internal docketing procedures and available automation. Now, after the close of public comments to the Automation Committee, for the first time the arguments of the appellate clerks have been made public, and may now be scrutinized for logic, consistency, and practicality. [4] In some ways letter seems to focus on practical issues in implementing the system. Problems which are easily overcome are overstated and exaggerated. Moreover, your letter fails to consider larger issues, including the needs to address the problems of the district courts, and the impact on the public. [5] Your letter the does not in any meaningful way respond to the policy issues raised in the ABA proposal and states: In summary, we dispute the need for the alternative case citation system proposed in the ABA's resolution. The question is need for whom? Need for the clerks? Need for the public? Unfortunately, your letter does not in any way attempt to refute the detailed rationale for the new citation described in the ABA report. Your letter then states as part of the summary: 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. [6] Although you refer only to "electronically reported opinions", the ABA citation is a method for print and electronic publishing of opinions -- this leads me to believe that you are still have in mind the 1992 ECS proposal, which solved no problem because it was not a permanent citation. The ABA proposal is for an "immediately available" and "permanent citation," and not just intended for electronically reported decisions. Second, your statement appears to address only "unpublished" opinions. Are you stating that the sequential number are indeed appropriate for "published opinions", but not for "unpublished." Even if you so intended to distinguish between "published" and "unpublished" opinions in this statement, how does one address the problem at the district court level, where there is no official concept of "publication." There is no official court record at the district court level for most opinions designating whether an opinion is published or not. [7] You may not be aware, but the Sixteenth Edition of the Bluebook explicitly endorse the ABA style citation with sequence numbers. Hopefully, the members of the Columbia, Harvard, and Pennsylvania and Yale Law Reviews who adopted the proposal after their own study in 1996 are this year ensconced as clerks for federal judges and perhaps will be able to provide a balanced view of why they changed the rule. [8] The present opinion citation system, which you seem to prefer, is based upon completely arbitrary numbers of where an opinion appears in a book printed by a private publisher, and is in no way coordinated with the docket number. However, you letter states: 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. Are you saying that it is appropriate to have as an official citation a privately established citation that does not include the docket number, but that it is not appropriate to have a public citation that similarly does not include the docket number? I appreciate the concern of your members to have a cross reference between the sequential citation and the docket number. However, the appellate clerks never place the West citation for an opinion on the docket sheet, and thus one cannot find the West citation in the public court records. If one only knows the West citation of an opinion, using court records alone, one cannot find easily the official court version of the opinion. [9] Your letter attempts to assume the higher ground of authority based upon practical knowledge in disseminating appellate opinions electronically and your work with the law school Internet site: 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. 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. [10] I will now hold you to the higher ground you have sought to assume. The opinions which have been electronically disseminated cannot be cited in a brief to an appellate court or used in a legal memoranda for several reasons. Many of the opinions do not include the pagination, or if they do, only include the manuscript and not slip pagination. Even were a federal appellate court to look kindly upon a brief that cited a 1993 published opinion by docket number with regard to the West citation, one could still not cite to a pin-point location. Moreover, many opinions have been modified after release on the bulletin boards, and the amending orders were never made available electronically. For many courts BBS and Internet opinions, a reader cannot determine if the version of the opinion in her possession is the latest version, because many courts adamantly insist upon modifying opinions, but keeping the same file name. Finally, by palming off responsibility for archives upon law schools, the courts have thrown the concept of accountability out the window. [11] Those circuits such as your own that rely upon docket numbers in the electronic environment seem to be at a loss in dealing with multiple opinions in the same case. It is not at all unusual to have earlier opinions overwritten by later opinions on the bulletin boards. For example, one needs to look no further than the Eighth Circuit and the opinion in the case McMorrow v. Little, No. 95-3862. Two different opinions were disseminated on your bulletin board, and both have the same file name 953863.P8. One is dated the January 8, 1997 and the other is dated March 17, 1997. Although the earlier opinion is not on your BBS, both of the versions are available on the Eighth Circuit site maintained by Washington University School of Law. These files may be found at the following locations. ftp://ftp.wulaw.wustl.edu /8th.cir/970108/953862.P8 January 8, 1997 ftp://ftp.wulaw.wustl.edu /8th.cir/970317/953862.P8 March 17, 1997 But, oddly enough, the only reason that the earlier version was not overwritten is that the Washington University School of Law does not organize the opinions by docket number, but organized the files in directories based on date. Other school Internet sites store them in a single directory, and, in those situations, different files with the same name are merely overwritten. If one is seeking to download a file by docket number on the Washington University site , one has to search through numerous directories organized by docket number, which makes one wonder about the sanctity of the docket number. [12] One circuit has such a problem in dealing with docket numbers that if a matter has multiple docket numbers, then multiple opinion files are disseminated, one under each name -- the Fifth Circuit does this. [13] Of course, it is true that the problem of overwriting file names is also possible with the use of sequence numbers. That is why it is necessary to indicated amended files. See the following two Third Circuit files on the Villanova WEB site. On January 10, 1997, the file Sorted By Sequence Number
Sorted By Docket Number
[24] Were the courts assume the minimal task of tagging the docket number and the sequence number at the beginning of each case, then search engines could do this task. Thus, each opinion would have at the beginning a tag such as:8th 96-0191 Civil 0086 1997 etc. [25] This header would be attached at the beginning of each file, and would make it a snap to locate opinions and even generate the tables needed.. This is what the SEC does in the EDGAR system that makes authoritative documents available and searchable. But, courts do not like this because if one attaches a header at the beginning of an opinion, then it messes up all subsequent pagination, unless someone has taken the effort to hard paginate and insert page numbers. [Similarly, on a separate topic, the thought of permitting parties to file documents electronically with the courts without requiring some type of embedded tagging in a header as is done with EDGAR is a step in the wrong directions.] [26] I do not understand the necessity of enumerating the changes in procedure as you suggest here: 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. Are you saying that new procedures would need to be implemented, or that it is extremely difficult to resolve these problems. 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. What if there is more than one opinion per case (more common at the trial court level), what are you now suggesting as to simplicity? You then state: 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. [27] Now I am really confused -- if the docket number is so great, why organize the opinions by date -- and surely, the Internet sites could be reorganized. Actually, the opinions are organized on the system directories on most of the Internet sites by docket number. However, externally generated tables organize the opinions by date, frequently leaving out the docket number [note, that the date and sequence number organization would be substantially the same]. Your have really argued the point against yourself. This proves that people do not want opinions organized by docket number because, with the years that it may take an opinion to travel through the system [especially at the district court level], then opinions issued years apart are located together. But, what the law schools do is prove that the externally generated tables can provide order to the chaos that results from naming the files with the docket number. I do not oppose using the complete date, and there may be some details to work out. But, the point of this discussion is that docket numbers are not as essential as suggested as long as the simple cross-reference information is available in the form of printed table, WEB lists, embedded tagged information, or databases. [28] Finally, using a docket number makes any possibility of print publication extremely difficult: one would have to wait years to print permanent bound volumes with the cases in docket number order. And, I shudder at the thought of shoveling tens of thousands of opinions on a CD-ROM with only a docket number identifier. That is why HyperLaw assigns a unique number to each opinion on its CD-ROM. [29] As to the enormous task of paragraph numbering, you state: 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. [30] The Fifth Circuit (which appears to be the leader in opposing any citation change at all) states that this will take 5 minutes per opinion. Based upon your statistics of 1000 opinions per court per year, that is under 100 hours a year per court. You do not state the number of law clerks and secretaries available to the 200 or so judges who write these opinions, but I believe it is three each, so we have 600 people to spend 1300 hours, or a couple of hours per person per year. If this is all it takes, I say it is worth it. 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. [31] Actually, a better suggestion for prisoners and pro se litigants would be to make available to them searchable authoritative case law. Should not federal prisoners and moderate income criminal defendants have the same access to Westlaw that is provided to federal prosecutors and judges? [32] Finally, I note that I had previously made comments urging that the concept of using a docket number be considered by both the AALL and ABA Committees, partly because I wished to have those committees address the concerns that had been raised. Although I do believe that docket numbers convey useful information, and assume that they will be used as a cite base for opinions that are not assigned sequential numbers, I am confident that the ABA Committee has in fact addressed your concerns in its report and in its submission to the Automation Committee. [33] I believe that sequential numbers are important because they importantly permit one to know that a source of opinions indeed has collected all of the opinions. This point was made by John B. West in 1909, and his point as is valid today as it was then. And, it will make print publication more feasible. I also have since become more familiar with the federal court docketing computer systems, and, am convinced that sequence numbering is something that could be programmed into the system in a straightforward manner. Using docket numbers is a lazy way out, and permits the type of confusion and file overwriting detailed above. Finally, at the district court level, forcing the District Court judges to assign sequence numbers to the very same opinions that they have historically sent off to West is a good thing and makes this process more public. [34] As noted above, the Judicial Conference did permit the Circuits to experiment, and the Third and the Sixth Circuits did assign sequence numbers. And, guess what -- it works, and it has helped those circuits and users of opinions from those circuits to have some comfort that all the opinions were being placed on the bulletin board and the internet and made public. As a result, only in those circuits can a user of federal court opinions determine that the user has indeed collected for her own use all of the opinions. It is also possible for another entity operating a web site, such as a law school, to ascertain that all of the opinions are available. [35] Had the 1992 proposal been adopted, the public would now have available to it over 100,000 federal appellate and district court opinions with a permanent public domain citation -- that was a missed opportunity. But, with more mature computer systems today, there is no reason to delay this any more. [36] As the federal courts move forward with automation, I hope that that there will be more opportunities to exchange ideas. In that vein, if you are in Washington on April 3, 1997 for the Automation Committee hearing, I invite you to attend the Press Conference being held at the National Press Club after the hearing and to further exchange ideas on this important topic. Sincerely, Alan D. Sugarman March 28, 1997 Page 14 of 11