the (new) legal writer

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.

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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.

Citing a multi-volume record

(Here's something I posted earlier today on Appellate Law & Practice.)

In an appellate brief, how do you cite the record? Both the Bluebook and the ALWD Citation Manual tell you to use the abbreviation "R." followed by the page number.¹ That's fine — for a one-volume record. But when you have a multi-volume record, I recommend including the volume number in the citation. Bryan Garner's Redbook suggests using the volume number, the initial "R.," and the page number.² Thus, if page 1071 appears in volume 5 of the record, the citation is 5 R. 1071.

Why include the volume number when neither the Bluebook nor the ALWD Citation Manual requires it? Because your job as briefwriter is to make it as easy as possible for the court to rule in your favor. That means making it as easy as possible for the court to find whatever you're citing. That means: don't force them to guess or figure out or hunt for the volume containing page 1071. Give them the information they need to locate page 1071 instantly.

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¹ Bluebook 19 (18th ed. 2005); ALWD Citation Manual 256 (3d ed. 2006).

² Redbook 106–07 (2002).

ALWD Citation Manual, 3rd edition

The Association of Legal Writing Directors (ALWD) offers the ALWD Citation Manual, an alternative to the Bluebook. I just got my copy of the third edition. While I haven't attempted a comprehensive comparison between the ALWD manual and the Bluebook, I can say that so far, the ALWD manual appears to be more complete, easier to use, and friendlier to the eye than the Bluebook.

The third edition is available through Aspen Publishers. I also found it on Amazon.com and Barnes & Noble.com, but on those web sites, it's not identified as the third edition. Look for the edition with the 2006 copyright date, ISBN 0-7355-5571-0, and 572 pages. And if you run a search on Amazon.com or B&N.com, don't assume that the first-listed result is the latest edition. (Today the third edition was the 2nd-listed result on B&N.com and 4th-listed on Amazon.com.)

p.s. (3/28/06): For more information about the ALWD Citation Manual, read this article by Wayne Schiess. And if you own the manual, bookmark the ALWD Citation Manual web page, where you'll find links to the appendices, answers to frequently asked questions, updates (think of it as a cyber-pocket part), and instructional resources for legal-writing teachers.

Peter Martin, Introduction to Basic Legal Citation

At this web site, Peter Martin answers all your questions about citations.