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by Mark
Whitney, CEO & Founder, TheLaw.net Corporation
1.877.4.LAWNET |
From cave painting to modern handwriting, from sticks
and stones and feathers to roller balls and fountain
pens, the way we humans have prepared various writings
for the consideration of others, has been an evolutionary
process spanning more than 25,000 years.
With regard to legal writing,
many jurisdictions still have antiquated internal
rules calling for citation to so-called official
page numbers. Everyone knows, and courts themselves
have noted, that these rules were originally propounded
to make it easier for a reviewing tribunal to find
the location of the particular text in printed versions
of opinions. See, e.g., Matthew
Bender & Company, Inc. v. West Publishing Company,
48 U.S.P.Q.2d 1545, 158 F.3d 693 (2d Cir. 11/03/1998)
Back in the days of books
only, the best you could do was direct the reader
to a specific page. Today, however, Federal courts
and most state appellate courts have Federal and
state access to westlaw.com and/or lexis.com. They
simply pop-up cases on computers. All opinions displayed
on a computer are a single page in length. Internal
page citations that were arguably indispensable
in the days of books, are not only irrelevant in
the age of computer based legal research and reference,
but are actually counterproductive.
What continues to matter
is the degree of professionalism and care you exercise
to ensure that all reasonable steps are taken to
make it as easy as possible for your readers to
get the gist of your written points without having
to access a slew of additional resources external
to your brief or memo.
Because of the Internet,
legal research and reference items originate from
literally tens of thousands of diffuse resources.
Accordingly, you should make it your business to
know and understand precisely how the reviewing
tribunals in your jurisdiction(s) access and read
various cited items. Does the reader have unfettered
access to the public web? Do they use West or Lexis
or an alternative competitor such as TheLaw.net?
If so, what information is covered in that plan?
Once you know what the reader does and does not
have access to, you can package your submissions
appropriately.
Why would one, for example,
require a reader to browse an entire page of text
when one can simply crib the relevant sentence or
two from an electronic opinion and gather that excised
text as a footnote or endnote?
Consider the person submitting
a brief in a local trial court. It may be that the
Court has access only to a dusty set of regional
reporters and nothing else. If that's the situation,
at a minimum, you should attach photocopies, a diskette
or CD-ROM for full reference to cited items external
to items the reader has ongoing access to.
If you don’t know
what a reviewing tribunal has regular access to
by way of legal research and reference resources
contact the clerk and ask. An internal page reference
to an item of information a court cannot access completely useless.
Our cases include paragraph numbers to provide more
specific guidance in these instances where you might
decide to attach an opinion, or a significant portion
of an opinion, as an exhibit.
In many state courts, judges
have West and/or Lexis plans that provide ongoing
access only to resources in their primary jurisdiction.
Accordingly, if you cite to a resource outside that
area, you should absolutely append the cited items
to your brief, in hard copy or electronic format,
sufficient for the reader to see your point in context.
A court’s inability to consider your central
point in context should be of primary concern. It
is your job to bridge any information gap.
To streamline compubased
navigation of cases retrieved on the computer, do what
many of our subscribers do, and that is to cite,
for example: Jones v. Day, 100 F.3d. 200 (2nd Cir.
1998) and then gather the sentence or two that you
want the Court to focus on as a footnote or endnote.
This absolutely furthers the spirit of longstanding
local rules that implicitly invite you to make it
as easy as possible for the Court to see what you
are talking about in the documents you ask it to
review and consider.
Indeed, a brief or memo
that includes quotes from cited items within the
brief or as footnotes
or endnotes, actually has the potential to put the
reader in the position of needing only your document
to get the gist of your point. A brief lacking in
such information, requires the reader to retrieve
items from other sources. Why force the reader go
through this needless hassle?
A reader who desires to
consider a computerized holding in context, simply pops your
case up on the screen and either holds CTRL+F or
clicks EDIT | FIND and jumps to each instance of
the relevant text in the case.
The Find Function has been
universally available on the personal computer for
over 20 years. This is a widely known technique,
not some hi-tech trick known only to advanced users.
This is the best-practices approach to navigating
any document on the personal computer. Only the
most novice computer user would be dependant on
a virtual official page number, jump to it and then
dig through the entire text of a page to find the
quote. What a complete waste of time!
Page numbers were obviously
indispensable when all we used were books. Not any
more. Indeed, continued institutionalized
reliance on them actually hinders the individual
productivity of legal writers and readers.
If every page displayed
on a computer is one page and one can jump on a
pinpoint basis to each instance of any word or term
in an electronic document, of what benefit are so-called
official page numbers?
The premium legal research
vendors continue to promote in law school training
sessions and to the market at large, this cumbersome
hard-copy document navigation methodology; even
in this ultra-modern electronic world where everyone
is literally already on the same page the instant
a case appears on the screen.
The persistent perpetuation
of this virtual hard-copy citation system by the
premium brands is certainly not a best practices
approach to electronic document navigation; CTRL+F
or EDIT | FIND is. Further, this is a system that
is available to all personal computer users, not
just those who buy in to West or Lexis.
Virtual internal pages
are all about maintaining the very market share
and brand dependency that the Internet continues
to threaten. We suspect it took many years before
all participants in the legal profession stopped
using feathers in favor of dip pens to draft their
briefs and memos.
Undoubtedly, it will be some time before all such
participants migrate away from paying extra for
highfalutin databases solely for the purpose of
having ongoing access to pretend page numbers that
are no longer critical to the practice of law.
In sum, if the goal is to
promote the happiness, productivity and
effectiveness of individual clerks and judges, do
them the kindness of including the important
language from cited items within the brief or as footnotes or endnotes and
migrate away from these
outmoded page numbers which no longer serve any
relevant purpose.
Ccontinued reliance on pretend page numbers
actually undermines the very principles of efficient
document navigation they were originally developed
to promote. |
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