the (new) legal writer

For haters of the Bluebook

Over at Slaw.ca, Simon Chester has a nice post entitled Death to Needlessly Prolix Citation Guides, which links to and briefly reviews an article by Judge Richard Posner bemoaning the bloated Bluebook. Simon also links to the original 1926 first edition of A Uniform System of Citation (what we now call the Bluebook)—which came in at a svelt 26 pages.

The Bluebook (19th ed.): Something I don’t need to practice law

At my work desk are two citation guides within arm’s reach: the 17th edition of the Bluebook and the third edition of the ALWD Citation Manual. I consult ALWD occasionally. I can’t remember the last time I consulted the Bluebook.

Recently the good folks at the HeinOnLine Blog announced the upcoming release of the Bluebook’s 19th edition, urging readers to pre-order their copies. I can understand why they’re excited: law reviews are their business. Me, I practice law for a living. There are many resources I need to do what I do. Not among them is the latest edition of the Bluebook.

As a practicing lawyer, here’s what I need to know how to cite, in descending order of importance: statutes, cases, constitutions, treatises, law-review articles, and web pages. Everything I need to know to cite those sources should fit on the front and back of one page. And except for web pages, citation of every one of those sources was covered in the Bluebook I used in law school in the 1980s.

If someone can show me that the Bluebook’s 19th edition will help me cite stuff that (a) I might actually cite in real-world legal practice, and (b) isn’t covered by a citation guide I already own, I might consider buying it. Otherwise, I’ll pass.

Not in your Bluebook or ALWD

How do you cite restroom graffiti? Or a tattoo? Here’s how. (Hat tip: Southern Appeal.)

Two lessons

Alaska Employment Law calls our attention to a recent minute entry teaching two lessons about proper record citation:

1. If the court has a local rule for citing something, follow the rule.
2. If you don’t follow # 1 above, the court may not consider the material lacking a proper citation.

On one hand, I feel for the lawyer who got slapped with this minute entry. On the other hand, if the court is going to have a rule at all, then the court must also do something to enforce the rule. In this instance, the court made the lawyer re-do the submission using proper citations.

This must have been before the Bluebook

I just wanted to share this passage about citation problems circa 1910. The advice in the concluding sentence is just as good today as it was 97 years ago:

The learned counsel for appellee has cited the cases by book and page only, without giving their titles; but, strange to say (about the first time such a thing has come within the observation of the writer in his more than ten years’ experience on this bench), this slipshod mode of citation has enabled the court to find all the cases intended to be referred to; that is to say, the figures (by some miracle) have all turned out to be right, every one of them. As a rule, most of them and sometimes all (by misprint or otherwise) turn out to be wrong; and the court has not the slightest idea what cases counsel had in mind. It would seem to us that, if a case is worth the trouble of citing at all, it ought to be worth the trouble of citing in a way that it will be likely to be brought to the attention of the court; that is to say, by title, as well as by book and page expressed in figures, which generally turn out to be wrong.

Corbett v. Hanson, 127 La. 219, 221, 53 So. 529, 530 (1910).

Citing a multi-volume appellate record

This is a topic I’ve written about before, but I think it bears repeating.

We all know that, when referring to the record (or the appendix, or the transcript), we must give a page citation. For instance:

• R. 123.
• App. 456.
• Tr. 789.

I recommend that if the record (or appendix or transcript) is multi-volume, include the volume number too — even if the pages are numbered consecutively from one volume to the next. As with citing the case books or a multi-volume treatise, put the volume number before the abbreviation and the page number after.¹ Thus:

• 1 R. 123.
• 2 App. 456.
• 4 Tr. 789.

Neither the Bluebook² nor the ALWD Citation Manual³ mentions giving the volume number, but I think you should give it anyway. Why? Let’s say you refer your reader to transcript page 3478. If your citation is “Tr. 3478,” you force the reader to figure out which volume contains page 3478. The result: A minute or so of the reader’s time that otherwise would have been spent thinking about your argument will instead be spent searching that voluminous record for the volume containing that page.  Give the poor reader the volume number, and you’ll maximize the time the reader spends thinking about your argument.

Remember, the purpose of a citation is not just to comply with court rules, or to give the bare minimum information needed to find the supporting material. The purpose is to enable the reader to find the supporting material instantly. So if you refer the reader to anything that comprises more than one volume, always give the volume number — even when the pages are consecutively numbered from one volume to the next.

Some people cite a multi-volume record by giving the abbreviation, followed by the volume and page numbers separated by a colon. Thus:

• R. 1:123.
• App. 2:456.
• Tr. 4:789.

The problem with this solution is that it may cause confusion. Generally in a citation, a colon is used between the page number and the line number.⁴ If you use a colon to separate volume number from page number, you may throw off readers who expect a colon to separate page number from line number.

We cite the law books by volume number, abbreviation, and page number. For example: Younger v. Harris is 401 U.S. 37; it’s not U.S. 401:37. Use the same volume-abbreviation-page convention to cite any multi-volume source, including the appellate record.

__________
¹ See Bryan A. Garner, The Redbook § 8.5 (2002).
² The Bluebook, Practitioner’s Note P.7 and § 10.8.3 (17th ed.).
³ Darby Dickerson, The ALWD Citation Manual § 29.5 (3d ed.)
⁴ See The ALWD Citation Manual § 29.5(b); The Redbook § 8.5(b).

If only the Bluebook were this much fun

For canon lawyers everywhere, Dr. Ed Peters presents his "solaranite-powered guide to the footnotes of the 1917 Code" of Canon Law. It's everything you need to know to interpret canon-law citations, according to a Plan 9 From Outer Space theme. (Hat tip to dotCommonweal.)

Guide to Foreign and International Citations

The N.Y.U. Law School's Journal of International Law & Politics has released its Guide to Foreign and International Legal Citations (pdf, 296 pages). Unlike the Bluebook and the ALWD Manual, the guide "rel[ies] on the source jurisdiction's internal citation system rather than an externally imposed standardized form ..." This allows writers who intend to submit materials to a foreign court or journal to conform their citations to the jurisdiction's own standards. It also allows readers of materials from foreign jurisdictions to understand and interpret the citations. (Hat tip to beSpacific.)

Citation of unpublished decisions soon to be okay in Louisiana

This one is for Louisiana lawyers. Currently in Louisiana, unpublished decisions of the courts of appeal cannot be cited. See Rule 2-16.3 Unif. R. La. Cts. App. That will change when Act 644 of the recently concluded legislative session becomes effective. The Act creates new Code of Civil Procedure Article 2168 which (a) requires Louisiana appellate courts to post their unpublished decisions on their respective web sites; and (b) authorizes citation of those unpublished opinions as legal authorities.

p.s. Coincidentally, the U.S. Supreme Court has recently approved new Fed. R. App. P. 32.1, prohibiting the federal appellate courts from restricting citation of unpublished opinions. Texas appellate lawyer Scott Stolley has written a commentary about new Rule 32.1, which just arrived in my in-box and which I hope you can read by clicking on the link. I don't know whether this satisfies the commenters' constititional concerns (see first two comments to this post), but it certainly demonstrates a trend toward approving citation of unpublished decisions.

Citing an electronic record

No sooner did I write the post below about record citation than I was introduced to my first electronic appellate record: five thousand plus pages of stuff on one CD. This technology is going to save millions of trees. At the same time, it raises a question not answered in any citation or style guide I know of: How do you cite an electronic record?

The answer to this question depends on the form of the electronic record. In the case I'm working on, the record is in a pair of humongous PDF files. Each PDF file is bookmarked by document number, corresponding to the document numbers on the docket sheet. So for this case, my citations will give the reader the page number and the document number, for example, "R. 4,567, Doc. 123." (No claim of invention here; I've seen similar citations in others' papers.) This form of citation will (I hope) give the reader two pieces of information that can be used to zero in on whatever I'm citing.