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
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:
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
The recommendations are consistent with the thoughts and study of a variety
of organizations. They are in the
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:
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:
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
Be it resolved that the State Bar of Wisconsin advocates enhancement of the
existing system of case reporting to accomplish publishing of
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.
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.
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.
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.
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
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.
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:
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
In the course of its investigations and discussions, the committee also
confronted a basic issue: Who owns the case law of
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.
During its deliberations, the committee gathered information on alternative
citation proposals from other jurisdictions and organizations.
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
The Third Circuit uses a notation similar to the Sixth Circuit, but has not
yet given the citation official approval.
On
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.
The Judicial EDI (Electronic Data Interchange) Subcommittee
of the Science and Technology Section of the
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.
The AALL has appointed a Special Task Force on Citation Formats to:
A number of commercial vendors participated in the discussions by the
Sub-committee and provided valuable input and expertise. They are:
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.
Comments by members of the Bar were solicited by a notice in the State Bar Newsletter
The judicial council shared with us some of the concerns and comments raised
by judges.
Comments were also solicited from law librarians, and lawyers and
organizations in other jurisdictions, both personally, and through the
Internet.
This section describes both the process by which opinions
are currently published, and the present requirements for citation.
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.
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.
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).
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.
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.
SCR 80.02 identifies two official reporters for
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.
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.
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.
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 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
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.
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.
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.
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.
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.
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
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.
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.
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
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
The committee recommends that there be a single citation
format for case law in
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
Each element would have the following meaning:
1966 -
the year
of the decision
the Court
of Appeals
235, -
the 235th
opinion
15 -
the 15th
paragraph
Footnotes would be handled as they are now in citations.
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.
The Court should be distinguished in this section. In the
case of a Supreme Court opinion, the designation would be "
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 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.
Long or indented quotations should be part of the paragraph
immediately preceding or succeeding it, so that the thought is a continuous
one.
Footnotes would not be assigned a separate paragraph number
and would be regarded as part of the paragraph in which they appear.
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
¶13 On
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]
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.
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.
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]
These would receive a sequential number as an opinion would.
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.
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
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.
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.
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.
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
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.
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.
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.
Citation systems are in a period of change. If
We did not adopt the systems already adopted by
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.
We have proposed that
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.
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.
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
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.
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.
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 "
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