If you’re going to submit documents with citations to unpublished decisions to US International Trade Court Commission Administrative Judge Dee Lord, you’re going to have to make sure it has Westlaw citations and not Lexis. In Judge Lord’s ITC Order [pdf] she ordered the parties to change the “incorrect” LEXIS citations for unpublished decisions and resubmit the briefs and reply briefs with WESTLAW citations.

The parties’ post trial briefs and reply briefs include several incorrect legal citations and citations to LEXIS databases for unpublished decisions, which are no longer available to the USITC. To ensure that the cited legal authority is considered, the parties are hereby ordered to review their briefs and verify the accuracy of their citations. The parties shall file corrected briefs, no later than February 14,2014, using Bluebook formatting for citations, fixing any errors in the citations and including WESTLAW citations for any unpublished decisions (including USITC orders and opinions).

Judge Lord joined the ITC Bench in September last year, and it would seem (and I am hoping) that this is her preference to how she wants briefs filed and not a larger trend. Since according to the USITC website [pdf, page 21], decisions can be researched on both Westlaw and Lexis, it would seem that both citations would be accepted by the USITC. However, the part in Judge Lord’s decision that says that Lexis unpublished decisions “are no longer available to the USITC”, may be driving this decision and thus creating an “incorrect LEXIS” citation.

This type of decision could mean that anyone submitting documents to the USITC would have to use Westlaw in order to submit “correct” citations. Let’s hope not!! Of course, it would be great if the courts would use a universal citation for their published and unpublished opinions, but that might be just too much to ask…

[Hat tip to Amy for pointing this out, and to Mark for getting me the USITC mention of using Westlaw or Lexis for USITC research.]

[Ed. Note: I incorrectly referred to the ITC as International Trade Court. I should have said International Trade Commission. – GL 2/15/2014]

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Image [cc] pearlsareanuisance

I got a note from Peter Martin, the Jane M.G. Foster Professor of Law, Emeritus, and former dean, Cornell Law School, letting me know that he was starting a blog as a result of the work he was doing with the annual revision of Introduction to Basic Legal Citation. Peter, along with Tom Bruce, founded Cornell’s Legal Information Institute (LII) way back in 1992, and has been a staunch advocate of access to legal information, as well as promoting the consistency, accuracy, and non-vendor bias of legal citation.

Peter Martin’s new blog, Citing Legally, begins with a post on how States have claimed copyright on their codified and published works, and walks the reader through an example of how the State of Mississippi has used copyright claims to allow a private legal publisher to control the “official” statutes while attempting to shut out another publisher using “unofficial” compilations.

According to the Scope and Purpose of Citing Legally, the blog will cover the interesting issues that Peter Martin has uncovered while working on the annual revision. In his own words:

The aim will be to draw attention to important differences in practice among jurisdictions and distinctive approaches – from the commendable to the lamentable, the new and novel to the archaic. Like the reference from which it springs the focus here will be on how judges and lawyers cite legal authority rather than law journal norms.

I’m looking forward to reading more from Peter Martin on the issues he finds on legal citation and all the nuances and peculiarities that come along with the topic. Go check out Citing Legally and follow along with me.

 

Image [cc] mattlary

It was a rough time for the Empire. 

Online case services were multiplying fast and furious.  Yes, even their vaunted reporter system had been compromised.  The beginning of the end began in the late 1990’s, when even the Courts had ruled against them.  It became more important than ever to just hold on, to jealously guard what was left from the encroaching armies of Competition. 

First, a little background:  This is about the use of parallel citations.  Legal documents, in my experience, use case law to support arguments made and positions taken.  And it’s important that the case is properly cited to both point to the source of the discussion and provide a way for the reader of the document to confirm (or deny) the reasoning made by the author.  In most cases, the author will add parallel or additional citations from non-official sources as a courtesy for their readers.  There are some judges that do require these to be included but I believe it is done for the reasons outlined above. Online services also routinely include citations to other services as well as their own without regard for the effect it may have on their own business, a practice that can only be described as extending this courtesy.

Now to the event that prompted this posting.  A letter recently obtained by 3Geeks was sent out by Westlaw outlining the possible issues surrounding the use of their WL cite for unpublished decisions by Lexis Nexis  as part of displaying the various parallell citations associated with a particular opinon.  The letter references an advertising campaign trumpeting the availability of parallel citations, with this one spotlighted, for unpublished opinons.  They also imply that these cites can only be presumed to be accurate only on their platform (Westlaw).  Frankly, I’m not sure why they weren’t flattered by the tacit acknowledgement of their competitor that their brand was respected enough to reference.

Parallel citations from other publishers have been routinely used by both Westlaw and LexisNexis for several decades.  Both have made a name for themselves as an accurate purveyor of legal information (including citations) that set them apart from such services as Google Scholar.  Although I am sure that Westlaw feels that this response is justified, I think that to respond to what is really a common industry practice indicates a surprising degree of desperation.  When asked by 3Geeks to respond, Lexis stated simply that these “parallel citations are lawfully obtained from reliable and accurate sources and are subjected to the same high quality editorial processes used for all of our case law collection.”  The Westlaw letter reminds me of the Daffy Duck/Bugs Bunny cartoon where Daffy must have the entire treasure of Ali Baba to himself and literally shows how small he is as a result.

As a research professional,  I find it difficult to understand how, or why, there would be any limitations on the use of parallel citations from any source.

Both the Westlaw letter and the Lexis response are included for your reference below:

I have to admit that I usually think that many of the articles that AALL puts out in its Law Library Journal tend to be too rigid and too academic in style, but the Summer 2011 issue is actually chock full of interesting articles ranging from Ron Wheeler’s Does WestlawNext Really Change Everything? to Gail M. Daily’s tribute to Earl C. Borgeson’s Ten Rules for Law Library Management. However, the article that is near and dear to my heart (and also mentions me a few times) is a joint effort from DALIC (Digital Access to Legal Information Committee) called, Universal Citation and the American Association of Law Libraries: A White Paper. With its introduction by Oklahoma Supreme Court Justice, Yvonne Kauger, this article rehashes the history of the Universal Citation effort in the State Court system of the United States.

As many of you know, I was knee-deep in the movement back in the late 1990’s and early 2000’s, and I have to say that it was probably the job that I loved the most because we all felt like we were doing something special, and that we were making a difference to the public we served. Although, it also felt good that we were snipping the strings of control that big legal publishers had on the core legal research materials… especially the silliness over Westlaw’s pinpoint citations and their claim that those were copyright protected and that no one could use those without paying a royalty to Westlaw first. I had visions in the late 90’s that every court in the nation would adopt this simple, yet so effective, method of vendor-neutral citation. After all, if a state like Oklahoma could do it, it seemed that any state could. Unfortunately, it seems that something happened in the early 2000’s that caused the movement to fail.

The promise, and subsequent failure is stated eloquently in the White Paper:

¶12 Unfortunately, the wave of citation reform crested in 1998. Courts in Arizona, Louisiana, Maine, Mississippi, Montana, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, Vermont, Wisconsin, and Wyoming, as well as Guam, the Northern Mariana Islands, and the U.S. Court of Appeals for the Sixth Circuit, adopted elements of universal citation. However, no jurisdictions, other than Arkansas in 2009 and Illinois in 2011, have moved to do so since the early 1990s. The ABA has regularly reaffirmed its support for universal citation in a resolution, but no other major organization has joined AALL’s efforts with additional support.

While I was moderating a panel at this year’s AALL conference in Philadelphia, all of the emotion that I felt while building a vendor-neutral citation system, and making all of that information available to the members of the Oklahoma Bar, the citizens of Oklahoma, and to anyone else that needed access to the judicial decisions of the State of Oklahoma, came back to me in a rush. There are very few times that those within the legal community can make a true difference in how the public access justice, but this was one of those times. I told the audience that those states that didn’t jump on the band wagon of Universal Citation have let their citizens down, and continue to enable the legal publishing giants to control access to justice. In my opinion, the judicial leaders of those states did not stand up for the people they represent, and have shown a lack of leadership and vision found in the now 18 states that have adopted the system.

I also lashed out somewhat against AALL and its Citation Committee for planting a flag in the early 2000’s, claiming victory, and then moving on to other things. There should have been a major push by the organization to push adoption in other states, especially larger, more affluent states, like California, Texas and New York. I know that those states are difficult to deal with, and tend to not like changing the status quo of their legal systems, but the mission of Universal Citation was not accomplished, and as we can see now, the claim of victory was far too premature.

Can the idea of Universal Citation, free from the grasps of the legal publishers, be resurrected? I have to say that at this point in time, I really don’t know. It takes strong leadership on the state court level; it takes strong advocacy from the ABA, AALL and other organizations to push for reform, and; it will take outside help from the legal publishing community, especially non-Wexis vendors, to step up and help those states willing to take on such reform, just as the (pre-Wolters Kluwer) Loislaw people did for Oklahoma. That’s a lot of ships that have to adjust course in order to change the direction of the Universal Citation movement. It can be done, but it will take a great effort on many parts to breathe life back into such a worthwhile reform.

Read: Universal Citation and the American Association of Law Libraries: A White Paper

NOTE: Also take a look at the new effort from http://www.universalcitation.org — plus, a video of the meeting of this group at Rutgers last month is available at http://camlaw.rutgers.edu/av-request/10711/77aeade1b0

First off, I’m going to come out and say that I think that what the Illinois Supreme Court officially adopting a vendor-neutral citation system is a great thing. In fact, EVERY STATE COURT should adopt a vendor-neutral citation system that allows everyone to access new decisions immediately, and with the ability to have an instant and authoritative method of citing to those decisions. Now, with that out of the way… let me make a couple of suggestions to that same court about some things it really needs to re-evaluate when it comes to a Uniform Citation System. (See the PDF press release… of course, even the press release is in PDF format… see #3 below on this one.)

  1. Go buy and read this book: Universal Citation Guide 2nd Edition
    This will be an invaluable guide to see what type of citations actually make sense and why states should at least attempt to be consistent when they decide to adopt a vendor-neutral citation system. I know that Christopher Bonjean’s post in Illinois Lawyer Now mentions the 1994 AALL edition and the 1995 ABA endorsement  but I’m thinking that someone got a little “fast and loose” with the guidelines when the final format came out from the Illinois court.
  2. Dump the “Year” + IL + “Docket Number” and go with a more standard “Year” + IL + “Decision Sequence Number”. Although the chances may be slim to none, there is a possibility that you could end up with to cases being decided that have the same docket number (because they came up through the court in different years.) Perhaps the Illinois docketing rules are different, but I’m still a big fan of the sequential numbering system over the Docket Number.
  3. Drop the PDF-Only Formatting. Putting the official release in PDF format just means that you’re giving up one proprietary format (Westlaw & Lexis citations) and adopting another. I know that Judges love PDF formatting, but many Judges would still be using WordPerfect 4.1 if they thought they could get away with it (anyone want to be me that there are still some Judges out there that secretly type up their documents in WP 4.1?? I’m thinking there actually may still be a few out there.) – See Elmer Masters’ blog if you need a second opinion on the PDF-Only issue.
  4. Put the documents out on the web, and make them searchable. It’s not like I’m asking for you to create an iPad App. You used to have a website that contained your decisions… time to fire that baby back up!
  5. Look at the Oklahoma Supreme Court as an example. Now, here I’m a little biased because I worked for the Oklahoma Supreme Court on their OSCN.NET project, and I still think they have the best example of what a state court can do to really adopt a vendor-neutral citation system and create a platform to serve the public. 
I was joking around on Twitter about the things that I found to be “silly” when it came to Illinois’ decision to go with their citation and PDF formatted decisions. But in all honesty, I’m really glad that the Illinois Supreme Court has taken a step in the right direction when it comes to breaking the hold of the proprietary citation systems. I really hope that the court can look at this list of five suggestions and really consider tackling a few of them before they get too far down the road and can’t turn around.

Bloomberg Law hit a milestone this week when U.S. Magistrate Judge Douglas Arpert (U.S. Dist.Ct., D. New Jersey) used the “Bloomberg Law” citation when it cited to a number of unreported cases. In the case Homa v. American Express Co. [PDF], Civil Action No.: 06-2985 (JAP)., 2010 BL 245394, [*12] (D.N.J. Oct. 18, 2010), Judge Arpert lists a number of cases cited by the Plaintiff, and left in the Bloomberg Law citations:

United States v. Stuler, Civil Action No. 08-273, 2010 U.S. Dist. LEXIS 43338, 2010 BL 99422 (W.D. Pa. May 4, 2010); Bell v. Alltel Communications, Inc., Civil Action No. 08-648, 2008 WL 4646146, 2008 BL 235539 (W.D. Pa. Oct. 17, 2008); S. Freedman & Co. Inc. v. Raab, Civil No. 06-3723, 2008 WL 4534069 at *2, 2008 BL 223083 (D.N.J. Oct. 6, 2008); and Kirleis v. Dickie, McCamey & Chicolte, PC, Civil Action No. 06-1495, 2007 WL 3023950, 2007 BL 124745 (W.D. Pa. Oct. 12, 2007) Id. at 9-10.

Although the cites all either have the alternative Westlaw or Lexis cite, it does seem to be the first time that the “___ BL ___” has made the cut. The corks are being popped at Bloomberg Law to mark this occasion, and they are hoping that this is the first of many “___ BL ___” cases being cited. For attorneys, paralegals, librarians and judges all over the country, there is more of a “oh, great… one more Blue Book rule I have to learn!”

Does that mean that the 20th Edition of the Blue Book will be coming out soon?

Congratulations to Bloomberg Law. It is a big day for them, and perhaps a day that the duopoly of “___ WL ___” and “___ Lexis ___” have a new partner.