|
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 a court does not have is 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 the reader may be laboring under.
To streamline compubased navigation of cases retrieved
on the computer, forget about page numbers. You don’t need them and they
will bog the reader down. Instead, 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 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 make the reader go
through this needless hassle?
A reader who desires to consider a 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. Today, however, in all but a handful of backwater
jurisdictions, they are disposable items. 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 in footnotes and/or endnotes and
forget about these outmoded page numbers which no longer serve any
relevant purpose.
In light of the foregoing rationale, and otherwise,
there can be little doubt that continued reliance on pretend page
numbers actually undermines the very principles of efficient document
navigation they were originally developed to promote. |
