Proposed Citation System

Report to Board of Bar Governors
Technology Resource Committee
June 22, 1994


N.B.
This document is a report to the Board of Governors of the Wisconsin State Bar submitted to them for their approval.
This report and its recommendations have not been approved by the Wisconsin State Bar Board of Governors and does not represent a position of the State Bar.

[A June 23 posting to the law-lib Internet list by Marcia Koslov of the Wisconsin State Law Library reported approval by the Board of Governors.]


 

EXECUTIVE SUMMARY

This report responds to the Resolution passed by the Board of Governors last January.

The report reflects several years of discussion by the Technology Resource Committee, ideas from a variety of private, commercial, and governmental sources and organizations, and considerable deliberation by the Law on Disk Sub-committee.

New computer technologies make it practical to provide case law to the courts, the Bar, and the public more effectively and less expensively than from books alone. The present system is tied to the use of paper as the medium and to dissemination by a small number of print publishers. The present system impedes the use of new technologies.

Our goal is to establish a foundation that will allow the adoption of new technologies, but still support present technologies such as books. To do so, two main steps are necessary:

  1. Adopt a "vendor neutral" and "medium neutral" citation system for Wisconsin case law.
  2. Establish an official repository of opinions.

This proposal does not require anyone to use a CD-Rom, a modem, a computer, or any other particular technology. Nor does this proposal favor any particular publisher. It will facilitate the use of new technology and the entrance into the market of new publishers. It will also simplify the present citation system for the practitioner, principally by abolition of parallel cites as no longer necessary.

A "vendor neutral" and "medium neutral" citation system makes the cite depend on characteristics that are inherent in the opinions of the courts. The courts, not private publishers, determine the citation. In our proposal, citation will be to a case number and a paragraph of the opinion. The same citation will allow finding the law in printed editions, CD-Rom, via the Internet, and through new and as yet undefined technologies.

A state archive of Wisconsin case law will make opinions directly available to all publishers and to the public. The state, and not private publishers, will "own" the final text of the case law. It will encourage publishers to compete by the value that they add to opinions such as headnotes or search tools, rather than by preferred access to the text of case law.

The recommendations are consistent with the thoughts and study of a variety of organizations. They are in the Wisconsin tradition of leadership in effective and open government.

BACKGROUND TO REPORT

Sub-Committee Membership

This report was done by a sub-committee of the Technology Resource Committee of the State Bar. People with particular expertise, involvement in the current process or publication and citation, or who performed a liaison role with other bodies were added to the sub-committee. We are very grateful for their generous and willing assistance.

Members of the sub-committee are:

  • Robert Hagness, Chair
  • Charles Blumenfield
  • Rex Ewald
  • James Fullin, Executive Secretary, Judicial Council
  • Marilyn Graves, Clerk, Wisconsin Supreme Court
  • Marcia J. Koslov, State Law Librarian
  • John Lederer
  • Bruce Munson, Revisor of Statutes
  • Jon R. Wilcox
  • Clyde Wynia

Art Saffran served as the State Bar's Liaison and Secretary to the sub-committee.

The sub-committee gratefully acknowledges the editorial assistance of Marcia Koslov and John Lederer.

In addition the sub-committee benefited immensely from the views and expertise of several interested publishers and database providers:

  • Lawyers Cooperative Publishing Co.
    • Rick Cusker
    • Gary Hernal
    • Susan Van Knapp
    • Patricia Waskowski
  • Mead Data Central/Michie's
    • Monica Yunag
    • West Publishing Company
      • John Nelson
      • Michael Whetstone

Board of Governors' Resolution

This report responds to a resolution of the Governors of the Wisconsin State Bar which provided:

In order to promote the improved practice of law in the State of Wisconsin,

Be it resolved that the State Bar of Wisconsin advocates enhancement of the existing system of case reporting to accomplish publishing of Wisconsin case law in electronic form.

The following should be included in the enhanced system:

1.      A citation system such as calendar year, sequential case number, and paragraph number, included when the opinion is released, to facilitate publication in electronic form.

2.      Designation of an authorized state agency, pursuant to existing statutory authority, to publish the case reports in electronic form

3.      Conversion of existing case reports to electronic form.

Further, that the Technology Resource Committee of the State Bar shall encourage discussion among the State Bar, the Courts, and other interested parties; shall review similar efforts by the federal courts and other state courts; and shall present a report to the Board of Governors by June of 1994 on desirable methods of citation, means of accomplishing the purposes of this resolution; and any progress made in its accomplishment.

New Ways To Access Case Law

Committee's Promotion of Technology

The Technology Resource Committee (TRC) is charged with facilitating the efficient and effective use of technology by the profession to improve the provision of legal services.

Within that purpose, the Committee has actively promoted the availability of legal research resources in computer searchable form, such as the Revisor of Statute's providing the statutes on CD-Rom.

New Technologies

Since the early 70's research materials for lawyers have become available on a variety of media. Lawyers have gained many new tools such as Lexis and Westlaw, access to library materials through telecommunications, forms on disk, large amounts of reference material on CD-Rom, and steadily improving programs for searching and using materials. These tools are all in their infancy, and can be expected to grow.

Though this report emphasizes CD-Rom technology because it is available now and is well understood, the Committee viewed its task as providing a base that would work with all technologies.

Internet Access

Though CD-Rom is currently a rapidly growing technology, it is clear that other computer based technology will become important in the future. For instance, it currently appears probable that the courts of the state and the state law library will be combined in a wide area network, making the resource of the library available on-line to the courts.

At a future date it is probable that the library's resource, along with that of other libraries, will be available to the public through the Internet [n 1]. Those with Internet access can already reach significant legal resources.

CD-Rom Technology

Description

A "CD-Rom" is a 5" diameter disk based on the popular compact disks used to store and play music. In its computer form, a disk stores approximately 30-60 volumes of case law. When a computer is equipped with a CD-Rom drive (about $150-400) the computer has access to the data stored on the disk.

Costs

The disks are very cheap to physically produce, and costs have been dropping. In quantity they can be physically duplicated for under $2 each including materials, much as phonograph records can be inexpensively pressed from a master mold. [n 2]

Search Engines

Simple methods of reading and accessing computer text are often insufficient with the huge amounts of text that can be stored on CD-Roms. Commonly one uses a program which allows quick searches and access to the material in an organized way. These programs are called "search engines". The search engine is often bundled with the CD-Rom data. [n 3]

Search engines sold separately from the text generally range in price from $0 (shareware) to $1000, with the more common ones generally in the $100-300 price range. There are over 100 commercially available search engines. Search engines are still rudimentary, but are steadily being improved.

Availability

As of January of 1994 there were in excess of 250 CD-Rom titles containing legal materials, other than compilations of state statutes and case laws. The titles had over 30 different proprietary search engines bundled within them. There has been, and will probably continue to be, a rapid explosion in the number of titles available.

Cases on CD-Rom

Nominally, because case law is public domain material, and because CD-Roms are inexpensive to produce, case law on CD-Rom should be inexpensive. Currently two major legal publishers, West Publishing Company and Michie's, offer CD-Rom compilations of Wisconsin case law.

The commercially available compilations from the large legal publishers are priced at approximately the same general level as printed versions of the case law (in the $1500 to $2300 range). The compilations include proprietary search engines and licenses which prohibit detaching the case law itself from the search engine.

Citation System Creates Impediments

In researching the issue, it gradually became clear to the Committee that a principal impediment to the provision of inexpensive case law materials was the current citation system. The current citation system is based on the page numbers of particular private published editions of case law. This has these effects:

  1. It forces use of a page delineation system based on paper that is not particularly well suited for all media.
  2. It forces other potential publishers to contract with the existing private publishers for consent to use their pagination scheme.
  3. It requires lawyers and courts to use a cumbersome system of parallel cites in order to assure that readers may use various editions of the case law.

In the Committee's opinion, the end result of this is to make it more expensive for lawyers and the public to obtain and use the decisions of Wisconsin courts.

Who Owns the Law?

In the course of its investigations and discussions, the committee also confronted a basic issue: Who owns the case law of Wisconsin?

At present, the state, and through it, the public, does not.

No repository exists within the state in which truly "final" copies of the decisions of its courts exist. Because editing occurs after the issuance of the opinion to the parties and continues until the final production of the publishers' editions, no "correct" copy of all opinions exists in state government.

As a matter of political philosophy, many on the committee felt this to be wrong. Court decisions are important official documents that reflect the decisions of one of the three branches of government. At the least, the committee felt, the state should possess, as a public document, a master copy of these decisions that the public could obtain copies of.

Sources of Information

During its deliberations, the committee gathered information on alternative citation proposals from other jurisdictions and organizations.

Other Jurisdictions
Federal Level

In 1991, the Administrative Office of the United States Courts issued a report from the Library Program Subcommittee of the United States Judicial Conference Committee on Automation and Technology for a proposed standard electronic citation system. The proposal was for the development and implementation of parallel electronic citations. It was not meant to replace the citation to the printed opinion. The proposal became complex and was not approved.

On January 1, 1994, the United States Court of Appeals for the Sixth Circuit adopted an electronic citation system as a common reference for all users of electronic and CD-ROM systems. The electronic citation is considered a parallel citation to the published reporter series. Based on the recommendations of the Committee on Automation and Technology, the electronic citation will consist of a court-generated, vendor neutral, reference number to opinions at the time of their release. Pinpoint cites are to the slip opinion page number. Appendix E.

The Third Circuit uses a notation similar to the Sixth Circuit, but has not yet given the citation official approval.

Louisiana

On December 17, 1993, the Supreme Court of Louisiana issued an order requiring a "uniform public domain citation form," with a parallel citation to West's Southern Reporter for all opinions and actions issued after December 31, 1993, by the appellate courts of Louisiana. The citation form consists of the "case name, docket number excluding letter, court abbreviation, and month, day and year of issue." Pinpoint cites are to the page numbers designated by the court. Parallel citations for pinpoint cites are not required. Appendix F.

Colorado

On May 5, 1994, the Colorado Supreme Court issued a memorandum stating that although "[t]he official citation to published appellate opinions will continue to be the volume and first page on which an opinion appears in West Publishing Company's Pacific Reporter, Second Series, to standardize the citation of electronically reported cases, the decisions ... will be numbered by paragraph.... Such "pin point" paragraph citations are an acceptable alternative to "pin point" page citations in West's Pacific Reporter, Second Series." Appendix G.

Organizations
American Bar Association (ABA)

The Judicial EDI (Electronic Data Interchange) Subcommittee of the Science and Technology Section of the ABA is supporting a non-proprietary citation system which could be used with opinions made available in an electronic format. Rather than determine specific solutions, the draft resolution seeks to establish a common frame of reference:

Draft Resolution of the House of Delegates

N.B. This resolution is a discussion draft prepared by the Judicial EDI Committee of the Section of Science and Technology. It has not been approved by the Board of Governors or the House of Delegates and therefore should not be taken as policy of the American Bar Association.

The American Bar Association hereby:

1. Supports the development and adoption of revised case citation conventions which:
(a) enable citation to cases and materials promulgated or published in a variety of media, including electronic media;
(b) facilitate location of cited references published in a variety of media;
(c) permit diverse publishers to publish public domain cases and materials and citations thereto in a variety of media without offending copyrights of other publishers;
(d) permit lawyers and judges using different media from different publishers to sensibly discuss the same public domain reference; and
(e) achieve a reasonable degree of consistency across jurisdictional lines in order to facilitate a broad publishing market and to simplify legal research.
2. Supports the critical examination of alternative methods of meeting the foregoing objectives, including use of content based conventions which are independent of particular media.
3. Calls upon courts and organizations promulgating citation conventions to coordinate with one another and to formulate and adopt revised citation conventions meeting the objectives expressed in paragraph 1 above.

Appendix D contains the draft resolution and supporting report by the ABA Committee.

American Association of Law Libraries (AALL)

The AALL has appointed a Special Task Force on Citation Formats to:

  1. consider and develop medium-independent citation forms for legal materials;
  2. to work with the judiciary, the bar, the ABA JEDI Committee, The Bluebook editors and other groups to promote uniformity of citation reform; and
  3. to serve as both a clearinghouse for information on citation reform and a resource for jurisdictions considering citation reform. The Committee includes members of the legal community, law librarians and legal vendors.
Commercial Vendors

A number of commercial vendors participated in the discussions by the Sub-committee and provided valuable input and expertise. They are:

  • West Publishing Company (Wisconsin Reporter, North Western Reporter, Westlaw)
  • Lawyers Cooperative Publishing Company (Wisconsin Reports)
  • Mead Data Central (Michie's, Lexis)
Other Commentators
Chris and Jill Wren

Chris and Jill Wren, co-authors of a book on Westlaw and Lexis, were kind enough to provide members of the committee, the Board of Governors, and the courts their thoughts and conclusions at an early stage in the process.

John Lederer of the Committee has met with Mr. Wren and agreed to provide him with a copy of the report and the Committee's recommendations as soon as it was available. The Wren memo and a brief response to some of the points raised by it are in Appendix I and J.

Members of the Bar

Comments by members of the Bar were solicited by a notice in the State Bar Newsletter

Judges

The judicial council shared with us some of the concerns and comments raised by judges.

Others

Comments were also solicited from law librarians, and lawyers and organizations in other jurisdictions, both personally, and through the Internet.

CURRENT PROCESS

Process in Court System

This section describes both the process by which opinions are currently published, and the present requirements for citation.

Process in Supreme Court
Creation of Opinion

The case is decided and the opinion is written. Nearly all Supreme Court opinions are published. Each opinion contains a notice that it is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

Opinion Distribution

The opinion is given to the Clerk's office the day it is to be released. Currently, there is no central distribution point of electronically formatted Supreme Court opinions, though this is anticipated in the future. Paper copies of the opinions (with some editorial changes by the clerk's office) are sent to the publishers.

Any editorial changes communicated to the clerk's office prior to the issuance of the advance sheets are sent to the publishers. LCP sends laser printer proofs to the clerk's office for review and proofing. Any editing changes required are communicated in writing to LCP. The advance sheets from both LCP & West are reviewed by the court. Any required changes are communicated in writing to the publishers by the clerk's office.

The last advance sheet to be included in a bound volume will contain the close out date for changes. In rare instances last minute changes may be communicated by telephone or fax.

The bound volume goes to print containing the final version of the opinion. Changes after the printing of a bound volume are rare. However, any changes necessary after the publication of the bound volume may be handled by LCP via sticker pages, or by West in any future edition of the volume.

Process in Court of Appeals

The process follows a path similar to that of the Supreme Court opinions, with two additional components: a publication conference and the use of the Supreme Court/Court of Appeals Bulletin Board (SCCA/BB).

Publication Conference

Each opinion includes a recommendation of the panel for the district originating the opinion, regarding publication or non-publication of the opinion. The decision regarding publication/non-publication is made by the Publication Committee at a monthly publication conference where the previous month's opinions are reviewed. On occasion, an opinion may be deferred to the next month.

Decisions made at the Publication Conference are immediately transmitted to the clerk's office. Upon receipt of the publication information, the clerk issues two orders; one listing cases to be published, the other listing cases that will not be published. These orders are immediately put on the SCCA/BB.

SCCA/BB

Court of Appeals opinions are transmitted electronically from the district offices to the clerk's office several days prior to the release date. Opinions are mailed to the parties from the district offices one day prior to the release date.

On the morning of release, opinions are available in paper copy from the Court of Appeals district office and the clerk's office. The opinion is also available on the electronic bulletin board (SCCA/BB). The publishers and online research services retrieve all Court of Appeals opinions from the SCCA/BB.

Approximately two weeks after the publication conference, the published opinions, with editing changes, are transmitted electronically to the Administrative Assistant to the Chief Judge of the Court of Appeals and from there to the clerk's office. These published opinions are marked as final and added to the SCCA/BB, overwriting the earlier released opinion. Using the orders, the publishers and online research services retrieve the final, published opinions from the SCCA/BB.

Requirements for Citations in Wisconsin

SCR 80.02 identifies two official reporters for Wisconsin case law: Callaghan's Official Wisconsin Reports, 2d Series (LCP) and North Western Reporter, 2d Series (West).

Initial citation is to the volume and page number of the Wisconsin Reports and the North Western Reporter. Subsequent citations must include references to the volume and page number of at least one of these publications and shall be internally consistent. Appendix A and B.

CURRENT SYSTEM'S PROBLEMS

Lack of State Public Record

No permanent citation until published

The citation system does not allow a permanent citation until after the printed copy has been privately produced, because the page format of the printed copy determines the citation.

Possibility of divergence in "official" reporters

Wisconsin is unusual in having two official reporters. Though the Committee is unaware of an actual problem, the process is one that permits the possibility of divergence between the two official reporters. On rare occasion, for instance, some late editing changes are made by telephone or fax. That creates the possibility of one publisher, but not the other, having a change. There is no "master" text from which to reconcile differences.

Unavailability of public records from public sources

Because the opinion may be edited in the publishing process, the State does not possess a "final" copy of the opinion. Thus no public repository of final decisions exists.

Barrier to New Entrants

Necessity of "Select" Publishers

As it presently exists, the system cannot support numerous independent publishers of case law. Additional companies may publish case law, but absent a willingness to allow longer and longer parallel cites they must license from the existing publishers the ability to use their pagination schemes.

Nor can the system provide additional publishers the type of support that it currently provides the two official publishers. Currently court personnel provide several steps of proofing and editing, communicate individually with the publishers, and generally provide a high level of support.

That same level of support could not be provided to an increasing number of publishers. As an unavoidable result, the selected reporters necessarily enjoy a favored status.

West's Copyright Claim

West claims that it has a copyright in the page numbers used for "pinpoint" citations ( In a citation, "100 N.W.2d 123, 23", 23 would constitute the "pinpoint" citation). Though West has stated that lawyers and courts may freely use the citation without threat of action, West claims that other publishers may not include West's page numbers in their editions absent a license from West. See West Publishing Co. v. Mead Data Central, 616 F. Supp. 1219 (D. Minn. 1985), aff'd 799 F.2d 1219 (8th Cir. 1986), cert. denied 479 U.S. 1070 (1987).

West has assiduously defended this claim. At least one attempt to provide federal case law on CD-Rom has collapsed after the product was produced, reportedly because the principals could not suffer the costs of a suit by West. Appendix H.

West's claim is arguable. A current opinion of the Wisconsin Attorney General states that a recent Supreme Court decision obviates West's claim. Appendix C. However the practical effect, absent a ruling to the contrary, is that the claim makes it difficult for new entrants unless they obtain a license from West.

West's copyright claim tends to evoke a visceral response among lawyers. It has limited competition. However, it is neither the sole nor even a principal reason for the Committee's proposals.

Citation Form is Media Specific

Page number determined by layout in volume

Currently citations are to the page number in a given publisher's volume. The page number is an artifact of the printing process, determined by the type face selected and the page size. It does not reflect the author's thought, nor is it logical.

Availability determined by printing date

The necessity of citing to a page number makes it difficult to cite a case unless and until one of the print publishers has printed the case. Since the printing process is a fairly involved one, this delays the date when the case can be cited in permanent form.

Not universal

The page number is a very parochial division. It applies to only a specific edition of the case law. If another publisher elects to print the cases with a different page size, typeface or order, the page numbers are different.

Parallel cites

Because the page number is edition specific, we have created the mechanism of parallel cites so that lawyer A with one publisher of case law can cite a case and lawyer B with a different publisher can find the cite. This is clumsy and it creates a large amount of unnecessary work in the preparation of a legal document.

Moreover, it cannot easily be expanded. If another publisher wished to publish case law, the publisher could not reach the same level of utility in the legal community unless the citation were added to the parallel cite. Lawyers would balk at the increased work.

Not well Suited for Electronic Media

The page number is an artificial construct that is a byproduct of the printing process. Though it can be "added" onto electronic copies of opinions by inserting page markers, it is not innate in the electronic media. Adding page markers, makes the electronic copy dependent on the particular printed edition that provided the page numbers.

Moreover, electronic media can "scroll". This strips a "page" of any meaning at all. Prior to printed books, the ancients routinely stored information on scrolls. The citation system normally used for this information was Chapter, Scroll or "Book" and paragraph number. The obvious example is the Bible, e.g., Deuteronomy 16:19, , but the convention is the same for all ancient authors, e.g., Herodotus, Thucydides, Caesar, etc.

Interestingly, the conversion of these authors to modern books has not ended the use of the ancient method. For example, most modern editions of Thucydides continue to make references in the form "V,23"meaning Book 5, paragraph 23. Unlike the lawyer, the classical scholar need not worry about his edition in order to find a reference.

The proposal of the Committee is, in no small part, a proposal to use this system. In several millennia, we have come full circle.

COMMITTEE'S PROPOSAL

Two Main Items of Proposal

The Committee proposes two main items:

State Authoritative Archive of Opinions

Maintenance by the Clerk's Office (and the State law Library) in electronic format of an archive of the final copies of all opinions in their final form. This archive would be available to anyone who wished to copy part or all of the archive, for the cost of copying. It would constitute the authoritative master copy of state court opinions.

Universal Citation System

The adoption of a universal, vendor independent, citation system that can be used by any publisher, and is suitable for any media.

State Electronic Archive

At present most opinions are in electronic format when they leave the courts. With the present exception of Supreme Court opinions they are provided to the publishers in electronic format.[n 4] The Committee proposes that the state continue this practice, but that

  1. The opinions be preserved indefinitely.
  2. The copies of the archived file be available to anyone who wishes to publish or otherwise use the law for the cost of making a copy.
  3. The archive reflect any post issuance editorial changes

The logical place for such an archive is in the Clerk's Office. In addition to the master archive within the Clerk's Office, the committee would suggest that a duplicate archive be maintained in the State Law Library. The reason for this is to provide redundancy in the event of disaster, and because the State Law Library as an institution is better able to respond to requests for dissemination from the public.

The archive would have the ability to provide to anyone a set of Wisconsin case law for the cost of copying. It may be possible, at a future date, to allow dial in access to the archive, or Internet access for obtaining copies of opinions. The archive would replace the current BBS maintained for the use of publishers.

Proposed Citation Form

The committee recommends that there be a single citation format for case law in Wisconsin, usable by printed media, database providers of case law, and providers of case law on CD-Rom or other media. The proposed citation format includes the following four elements:

  1. Year
  2. Authority/Court
  3. Case Number
  4. Paragraph Number

Each element of the citation should be separated by a single space. Paragraph numbers should be separated from the sequential case number by a comma. Thus a cite might be:

1996 Wis App 235, 15

Each element would have the following meaning:

1966 -

the year of the decision

Wis App -

the Court of Appeals

235, -

the 235th opinion

15 -

the 15th paragraph

Footnotes would be handled as they are now in citations.

Details of Citation Elements
Year

The year should be designated by four digits, such as 1996. The four digits will eliminate possible confusion with a volume number in the existing citation system, provide a visual cue that the citation is in the new format, and avoid confusion as to the year meant after the turn of the century.

Authority/Court

The Court should be distinguished in this section. In the case of a Supreme Court opinion, the designation would be "Wis". In the case of a Court of Appeals decision, the designation would be "Wis App".[n 5] There should be a space between "Wis" and "App", such as "Wis App". No periods should be attached to the abbreviated designation, as they are superfluous.

Case Number

Opinions from both the Wisconsin Supreme Court and the Wisconsin Court of Appeals should be numbered in one unified sequential numbering system. The sequential number is designated by the Clerk of Courts. On January 1 of each year, the sequential numbers begin at one (1).

Paragraph Number

Paragraph numbers should be used to identify pinpoint citations. Each paragraph within the opinion should be sequentially numbered by use of an automatic feature in the word processor (macro).

Page Numbers Rejected

The Committee considered using the page numbers from the slip opinion rather than paragraph numbers. It rejected doing so. The problems with page numbers are discussed elsewhere in this report, and though using court established page numbering would make the result "vendor neutral", other disadvantages remain. Moreover, because based on a technology (paper printing), page numbers are susceptible to technological changes.

Author's intent

Paragraph numbers are not based on the technology, but on the author's intent. A paragraph indicates what the author intended as a complete thought, and is determined by the author, not the technology. Moreover, because paragraphs are logically related to the author's points and concepts, they work better for pinpoint citations.

Quotations

Long or indented quotations should be part of the paragraph immediately preceding or succeeding it, so that the thought is a continuous one.

Footnotes

Footnotes would not be assigned a separate paragraph number and would be regarded as part of the paragraph in which they appear.

Paragraph number format

The following is an example of the use of paragraph numbers within the text of an opinion:

11 Although American Family did not participate in the litigation, it had previously been named as a defendant because prior to litigation it had made no-fault medical payments in the amount of $5895.75 and had refused to waive its rights to subrogation for that amount.

12 The relevant facts are these: On April 11, 1986 Voge was injured in an automobile accident with Anderson. Voge brought suit against Anderson and his automobile liability insurer, Illinois Farmers, and a jury trial commenced on May 21, 1990.

13 On July 19, 1990, American Family paid $150,000 to Voge on three UIM policies of $50,000 each. American Family's policy contained an express subrogation clause which read:

Our recovery right. If we pay under this policy, we are entitled to all the rights of recovery of the person to whom payment was made against another.

However, American Family then waived any subrogation rights it had to seek reimbursement from Ander and Illinois Farmers.

14 Although American Family did not participate in the litigation, it had previously been named as a defendant because prior to litigation it had made no-fault medical payments in the amount of $5895.75 and had refused to waive its rights to subrogation for that amount.

The example uses the paragraph sign, "" which is available on most word processing equipment. If it is not available, the abbreviation "par." would be used.[n 6]

Numbering mechanism

A wordprocessor macro will automatically number the paragraphs. Paragraph numbering should begin at the line of the author's name (or per curiam). Neither the caption nor the mandate line should have a paragraph number.

Withdrawn Opinions

In the event that an opinion that is issued a number is withdrawn, that number will not be reused. The number will contain the caption "Opinion Withdrawn." There should be no reference to the case name or the jurisdiction.

Unpublished Opinions

Opinions designated as "Unpublished" are not included in the sequential numbering system. However, there is nothing that precludes unpublished opinions from having the paragraph numbers assigned. [n 7]

Orders of the Court and Special Proceedings

These would receive a sequential number as an opinion would.

DISCUSSION OF PROPOSAL

Criteria for Judging

Any examination of a proposal should match it against neutral criteria for an "ideal" system. In Legal Citation Form: Theory and Practice 75 Law Library Journal 148 (1982), Paul Axel-Lute suggested 13 criteria for citations. The following is a list of those criteria, additional criteria, and comments.

Axel-Lute Criteria

Uniqueness

There should be an unambiguous identification of the material. The old and proposed citation systems meet this criterion equally.

Brevity

The new system is shorter. It does not identify the publisher or volume since these become irrelevant with a universal system. More dramatically, the obviation of the need for parallel cites reduces the citation size considerably.

Redundancy

Axel-Lute uses this term in two positive ways -- the ability to recover from an error in the citation, and the ability to provide different sources for the same material so that the reader can find the most convenient source.

There is a change in redundancy in the first sense. The current citation system can recover from an error in the volume number or year since this information is more or less redundant-- one can approximately derive the year from the volume number and vice versa.

The proposed system does not have this same redundancy, but it does have a stronger redundancy. Because the citation is innate in the opinion itself (which contains the year, the case number, and the paragraphs) an error in citation can easily be recovered from.

The proposed system gains a major increase of redundancy in the second sense. All sources of the case law would be available to the user -- books, compendiums, CD-Rom, on-line databases, since the citation is contained within the case.

Informativeness.

This is the amount of information regarding the authority behind the statement used. Both the old and proposed systems meet this criterion equally.

Dissimilarity among forms.

This is to prevent confusion among different cites. The four digit year of the proposed citation system will provide a distinctive format that will prevent confusion with other forms.

Similarity to original.

This means that the cite should be as close as possible to the full identifying material on the cited material. Since the cite and the identifying material in the case would be the same, this principle would be fully satisfied. It currently is not.

Logic

The suggestion here is that the various items of the cite should follow a logical order. No substantial change would occur.

Permanence

There would be a gain. Currently a case is cited to a slip opinion, then to an advance sheet, then to a permanent reporter. Though rare, there can be changes between each of these steps.

The proposed system would become permanent as soon as the decision to publish is made, eliminating one area of possible change.

Readability/Transcribabily

This refers to the ability to express the cite in different media - handwriting, electronic media, etc. There would be a no significant difference in the mechanical ability to express the cite.

Tradition

There is a substantial difference. The current system is well understood, if a bit complex and involved. The proposed system, though simpler, is different and represents a substantial change.

Standardization

This is not as simple as it appears. The current system is surprisingly uniform across jurisdictions. However, it is fragmenting. Two states have already changed. Others are considering doing so.

The proposed system may become the proposed "standard" system. No part of it is peculiar to Wisconsin, and for the reasons stated, we think this system preferable. Whether it will become the standard is problematic.

Simplicity

The proposed system is substantially simpler than the present system.

Honesty

This means that the cite should cite the source actually used, rather than another source for the same material.

The underlying assumption of the proposed system is that all "copies" of the original are accurate copies. That is not an unreasonable assumption, given that an electronic copy serves as the original, and the conversion to other forms is generally by automatic processes. The citation is to the opinion itself, not the publication in which it is copied.

Additional Criteria

In addition to Axel-Lute's 13 principles we would add four others:

Precision

A citation to particular material should allow the user to easily find the precise material referred to. A paragraph cite has much greater accuracy than a page number, particularly when the page is in a multi-columned version (such as The North Western Reporter), and consequently covers a large amount of material.

Public Domain

A citation system should be usable by any person without legal hindrance. The proposed system would be.

Longevity

A citation system should be one that can handle changes in communications technology over a long period of time. By relating the citation system to the author's thoughts rather than to the particular media in which it is expressed we believe that the proposed system will have longevity regardless of technological change.

Universality

The citation system should be one that can be used within a variety of media and for a variety of purposes. The proposed citation system would be universal. The present system is not.

Reactions of Publishers

Mead Data Central/Michie Company (MDC)

Mead was represented at both the April 18 and May 6 meetings by Monica Yunag, Director, Editorial Policy & Licensing Standards.

Mead voiced strong support for the development of the proposed citation form.

Ms. Yunag assisted the committee by sharing her considerable expertise in the needs and requirements of database providers. She expressed some concern that Lexis was not presently programmed to recognize the paragraph sign, though this is temporary.

Lawyers Cooperative Publishing Company (LCP)

LCP is the publisher of Wisconsin Reports.

Though LCP favors the present system, LCP expressed their willingness to work with the Committee and to accommodate any changes that would be feasible in Wisconsin Reports to make it work well with the new system.

The principal change discussed was the inclusion of what cases were included in a volume by a listing on the spine, e.g., "1996 Cases 1-500", and a corresponding need to have the case numbers be sequential. Tables and indices were also discussed and LCP stated that they could accommodate proposed changes.

LCP also suggested that the proposed citation form avoid using uncommon characters, parentheses and punctuation and that the form be designed with as few keystrokes as possible. They also expressed their need for "lead" time to accommodate changes.

In a letter dated May 26, 1994, Mr. Robert Harty, State Government Relations Manager, noted that LCP claims copyright "in our headnotes and other original material."

West Publishing Company (West)

Mr. Michael Whetstone, Editorial Counsel, met individually with various subcommittee members. Mr. Whetstone expressed appreciation for being notified at the early stage of our discussions. He stated that West was interested in providing as much assistance as possible during our study of the proposed citation form.

Mr. Whetstone drafted a lengthy response to a proposed citation form issuing from the Judicial Council, suggesting several alternative options. In his response, he voiced some concern about changing a system that is not broken. West does not claim copyright on the initial case citation; copyright is claimed on all subsequent pagination.

John Nelson, Editorial Dept. Representative, attended a sub-committee meeting. Although unable to respond directly to questions from committee members, Mr. Nelson was able to convey the committee's discussions and actions to Mr. Whetstone.

Discussion of Arguments Against Proposal

Change

The single greatest disadvantage to the proposal is that it requires a significant amount of change. Change is expensive, if not in direct costs, then in the indirect costs of people adapting to change. Unless there is, or will be, substantial reasons for the change, one ought not change.

The Committee believes that the reasons exist now. Those reasons will have increasing sway in the future. The Committee believes that this change is better done early than late, so that the benefits of a necessary change can accrue more quickly and disruption be minimized.

Need for long lasting system

The citation system cannot be changed easily. A change made needs to be one that will endure for a very substantial period of time. One can contend that changing at this point is premature, and that further developments in technology will require further changes, thus it is better to wait.

The argument is reasonable, but, we believe, incorrect. The system proposed is not one that is dependent on the details of the technology. Rather, it focuses on the unique identifying characteristics of the decision itself. Because this makes the citation medium independent, it should accommodate future technology changes. Years, sequential numbers, and paragraphs are not likely to change with different technology.

Possible incompatibilities with other jurisdictions

Citation systems are in a period of change. If Wisconsin changes its system, it will be the third state to do so, unless others change prior to the effective date. Being a leader is fine. Leading without followers is not.

We did not adopt the systems already adopted by Louisiana and Colorado. Both states were, in our opinion, too conservative. They adopted systems that solved some of the problems but not all. Given the high barrier to change, a partial solution is not satisfactory.

We think the proposed system a better one, and one that, because of its qualities, other states are likely to adopt. There is considerable support for this system in the ongoing discussions among interested groups. However, we possess no crystal ball, and there is no certainty of this.

Need for use of two citation systems

We have proposed that Wisconsin not use parallel cites for cases after the adoption of this system. The proposed system will allow cases to be easily found in any medium including books. [n 8] The committee reached that conclusion late in its deliberations, but perhaps more firmly for its maturity.

Nonetheless, parallel cites must be used for earlier case law. There is no way to number the paragraphs in volumes long on the shelves. For a period of years this will cause court documents that cite newer and older cases to have two citation systems in them with possible confusion, and a consequent failure to reap all the benefits of a new and simpler citation system.

We have tried to minimize the confusion by adopting the four digit year to provide a strong visual cue as to whether a cite is in the new format or the old.

Nonetheless, we have been unable to devise a system that would allow soon dropping the old citation system for old case law.

Possible conversion of earlier case law

There is some suggestion in our discussions with publishers that one or more of the publishers might be willing to modify their existing database of old case law in electronic format to use paragraph numbers and case numbers. This would be convenient for the practitioner who wants to use all of his case law in electronic form. It would not, however, obviate the need to use the old citation system to accommodate the vast bulk of practitioners who already have and will use bound volumes.

Risk of losing publishers

To some degree private publishers currently sell the text of case law. It is not otherwise obtainable. The Committee's proposal should dramatically reduce the cost of obtaining the text.

The Committee believes that this will result in publishers competing much more vigorously in value added to the text -- the speed of delivery, means to search and access case law, compilations based on subject matter, the quality and usefulness of headnotes, explications, and other added material, hypertext links among cases and texts or articles. Competition that results in better means to search and organize the law is badly needed. Our present tools are rudimentary.

However, that result is not preordained. Another possible outcome is that publishers will decide that there is little or no money to be made in publishing Wisconsin case law and simply abandon the market. In discussions, one publisher suggested as much, though it later explicitly withdrew the suggestion. Both of the current publishers now indicate that they will continue to serve the Wisconsin market.

Withdrawal from the market by experienced legal publishers would be a real loss to the profession and the public. We desire, and believe, that they would instead invigorate the market by adding value to their products.

Specifics of Implementation

Text of rule change

Following is a draft amendment to Supreme Court Rule 80.01 and 80.02 presented for illustration:

SCR 80.01 is renumbered SCR 80.01(1) and 80.01(2) is created to read:

(2)The Clerk's Office of the Supreme Court and Court of Appeals shall maintain an archive in electronic format of the opinions, rules, and orders of the court of appeals and supreme court. The archive shall be the controlling text in the event of any disagreement among reporters.

SCR 80.02 is renumbered SCR 80.02 (1) and amended to read:

SCR 80.02 Proper citation.

(1) The citation of any published opinion of the court of appeals or the supreme court released by the clerk of the supreme court prior to (the enactment date of the rule change), in the table of cases in a brief and the initial citation in a memorandum or other document filed with the court of appeals or the supreme court shall include a reference to the volume and page number of the Wisconsin Reports and of the North Western Reporter in which the opinion is published. Subsequent citations shall include references to the volume and page number of at least one of these publications and shall be internally consistent.

SCR 80.02 (2) is created to read:

(2) The citation of any published opinion of the court of appeals or the supreme court released by the clerk of the supreme court after (the enactment date of the rule change), in the table of cases in a brief and the initial and subsequent citations in a memorandum or other document filed with the court of appeals or the supreme court shall include a reference to the calendar year, the court name, and the sequential number assigned by the clerk of the supreme court. Pinpoint citations shall be made to the paragraph number.

 

NOTES

1 The Internet is a massive combination of computer networks. The Internet makes available to a person connected to the network the information resources of other computers on the network. Individual users can access the information base by dial-in connections. [Return to text]

2 Where the material is already in electronic format and no search engine is included, CD-Roms are very cheap to produce.

For comparison, the Committee obtained sample quotes for the physical production of 1000 copies of 10,000 pages of material assuming that the material was in electronic format (as it would be were it produced by a word processor).

The cost per copy for the material on CD-Rom was $1.95 per copy.

The cost per copy for the material printed and inexpensively bound was $220 per copy. The cost of the paper alone for the printed material was an order of magnitude larger than the CD-Rom cost.

In actual publishing, of course, there are many costs above and beyond that of physical production. Indexing, presentation, headnotes, search engines, sales, support, etc would all add costs. [Return to text]

3 Licenses for current publisher's products often prohibit separating the text material from the publisher's search engine..

Because it takes time and effort to learn to use a given search engine, publishers see the search engine as a device to attach the lawyer to a certain publishers' products. For the lawyer who wishes to buy products from a variety of publishers, this creates the problem of having to learn a number of different search engines. Thus the lawyer may prefer to buy text separately, and use a single separately purchased search engine of his choice for text from a variety of sources. [Return to text]

4 The opinions are provided to the publishers thorough an electronic bulletin board, or "BBS". A BBS is a facility that one may call with a computer using a modem. Once a connection is established the user's computer can download computer files, read notices, and leave or receive messages. [Return to text]

5 The Committee considered using postal abbreviation codes, i.e. "WI" rather than "Wis", but decided that the change might be more radical than desirable. "WI" would have the virtue of being a form that could be used by any state system. [Return to text]

6 One of the database publishers, Lexis, advised us that their system would not be able to show paragraph numbers until they had completed a program modernization project that is under way. [Return to text]

7 The Committee's intent after considerable discussion was to not sequentially number unpublished opinions as they cannot be cited in Wisconsin and it is administratively convenient not to number them. However, at a late point, one of the editors of the "Blue Book" pointed out that unpublished Wisconsin opinions can be and are cited in other jurisdictions. The comment suggests that we should reconsider numbering them, identifying them by a "U" or other code after the sequential case number, e.g., "123U". The Committee has not had an opportunity to reconsider the issue yet. [Return to text]