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 Wisconsin,
Be it resolved that the State Bar of Wisconsin advocates enhancement of the existing system of case reporting to accomplish publishing of Wisconsin case law in electronic form.
The following should be included in the enhanced system:
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.
- 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.
- Designation of an authorized state agency, pursuant to existing statutory authority, to publish the case reports in electronic form
- Conversion of existing case reports to electronic form.
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.
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.
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]
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.
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 Wisconsin case law.
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 Wisconsin courts.
In the course of its investigations and discussions, the committee also confronted a basic issue: Who owns the case law of Wisconsin?
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 January 1, 1994, the United States Court of Appeals for the Sixth Circuit adopted an electronic citation system as a common reference for all users of electronic and CD-ROM systems. The electronic citation is considered a parallel citation to the published reporter series. Based on the recommendations of the Committee on Automation and Technology, the electronic citation will consist of a court-generated, vendor neutral, reference number to opinions at the time of their release. Pinpoint cites are to the slip opinion page number. Appendix E.
The Third Circuit uses a notation similar to the Sixth Circuit, but has not yet given the citation official approval.
On December 17, 1993, the Supreme Court of Louisiana issued an order requiring a "uniform public domain citation form," with a parallel citation to West's Southern Reporter for all opinions and actions issued after December 31, 1993, by the appellate courts of Louisiana. The citation form consists of the "case name, docket number excluding letter, court abbreviation, and month, day and year of issue." Pinpoint cites are to the page numbers designated by the court. Parallel citations for pinpoint cites are not required. Appendix F.
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.
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.
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]