Today in Canada, nearly three quarters of citations to recent case law use the neutral citation – an industry-independent, open identifier assigned by courts to their decisions. When we call something a “game-changer” most people assume that it was invented by Apple. Yet even though the neutral citation was not, it definitely is a game-changer in the legal publishing business. Here are some thoughts about why.
Cited and Citing Cases
Legal publishing would be much simpler if cases did not cite other cases or all sorts of other legal documents. However, in that event the law would be far less intelligible. The citations between legal documents help establish a coherent body of law. The interpretation of cases and statutes in their surrounding context of citing and cited legal documents is crucial in legal practice. It is often considered prudent to wait until the courts have their say on a freshly enacted statute before relying blindly on it. And no lawyer would bring up a “dynamite” case in court before carefully checking to see how this case has been treated by other case law.
Indeed, all legal publishers try in various ways to exploit the relations between legal documents in order to stand out in the eyes of their customers. Many features of the electronic publishing systems are based in some way on the relations between documents – hyperlinking, note-up, lists of cases and statutes considered, related cases, judicial history and treatment, search results ranking based on popularity, etc. The use of citation data has defined legal publishing for many years. Any major change in how things are cited in law will continue to have a great impact on legal publishing in the future.
Originally, citation data was neither intended nor designed to yield itself easily to computer processing, let alone free online publishing.
The Chinese Walls Around Print Report Series
The problem is well known. Print report citations were not designed to function outside the context of the report series they belong to. For example, “301 D.L.R. (4th) 513” does not mean anything to you if you don’t have the Dominion Law Reports nearby. Even if you were lucky enough to have the series in your firm’s library, you could not safely cite a case by, for example, 301 D.L.R. (4th) 513 and expect all your readers to understand what you are saying unless you assume that all your readers have the Dominion Law Reports in their libraries. This issue is amplified by the number of print law reports. In Canada, there are 70 major law report series according to the Queen’s University Law Library. (Although some from the list may have disappeared since the list was last updated, the number of report series remains large.)
To cope with this reality, the legal publishing world came up with citators, and in particular, their ability to offer and make use of parallel citations. Citators can tell you, among other things, what possible identifiers (citations) have been assigned to a particular case. For example, the following list – [2009] 1 S.C.R. 181; 301 D.L.R. (4th) 513; [2009] 2 W.W.R. 385; 183 C.R.R. (2d) 1; 320 Sask. R. 305 – means that the case Ravndahl v. Saskatchewan can possibly be identified by any the citations included in the list.
Commercial Electronic Databases Are Not Better
Nobody will dispute the fact that, for all practical purposes, electronic sources are the research tool. Printed reports will wither and gradually disappear. Those that remain because of their official status will be used, not for research, but only as the recognized source of citable law. Many if not most legal researchers will even affirm that this is already the de facto situation.
It is worthwhile to analyze what will happen in that new electronic context. Citations will be based on database identifiers. In Canada, such citations will take the following form: “[1998] O.J. No. 2515 (QL)”. In some ways, such a citation is leading to the same old problems discussed earlier in this post: those of proprietary citations. However, if the inconvenience of having to check in a specific book to know what was cited was annoying, citations consisting of commercial database identifiers create a much more serious problem. To get the cited material, whereas in the print environment the researchers had to take the time to visit the library, in the digital environment they must subscribe to the commercial database. In the era of the Internet, any type of proprietary citations could seriously threaten the legal information system.
The Free Law Publisher’s Initial Approach
One way of dealing with Chinese Walls is to live with them, and use one’s wits to figure out what is on the other side.
In 2004, CanLII was striving to be recognized as a legal information product that could successfully serve the everyday research needs of legal professionals. The idea emerged to develop a citator in order to improve hyperlinking — and a series of other cool features — using the relations between legal documents.
Building a citator is an expensive operation. Here is a brief outline of the manual and automated methodology mix that was employed to build Reflex, CanLII’s citator.
- 0. It all starts in a law library.
- 1. An editor keys in information about all cases published in a particular report series, for example, the Dominion Law Reports. Such information includes the case name, the docket number, the issuing court, the date of the decision, a very short excerpt from the case, and the report citation.
- 2. This operation results in many records like the following one:
Record 1
Case name:Ravndahl v. Saskatchewan
Docket:32225
Date:2009-01-29
Court:SCC
Excerpt:The appellant lost…
Citation:301 D.L.R. (4th) 513
- 3. Another editor keys in the same information about all cases published in another report series, for example, the Western Weekly Reports, producing records like this one:
Record 2
Case name:Ravndahl v. Saskatchewan
Docket:32225
Date:2009-01-29
Court:SCC
Excerpt:The appellant lost…
Citation:[2009] 2 W.W.R. 385
- 4. A program examines all the records and concludes that if all metadata is identical among pairs of records, the two independently compiled records must pertain to the same case, thus
301 D.L.R. (4th) 513 and [2009] 2 W.W.R. 385 are parallel citations of the same judgment.- 5. The operation is repeated for 35 report series on an ongoing basis.
Of course, in practice the exercise is much more complicated, as the software has to deal with various degrees of similarities of metadata; for example, almost identical case names (R. v. Smith and The Queen v. Smith). The program can also encounter other misfortunes, such as the absence of docket numbers or dates.
With this approach, CanLII was able to expand significantly the breadth of hyperlinking within legal documents, and all features based on the hypertext, such as sorting search results by number of citations, providing lists of related cases, and a few more. Because Reflex is able to resolve citations to cases that are unavailable on CanLII, the number of citations was used also as an indicator as to what are the most important cases missing from CanLII, or, in other words, where to start from if we want to scan cases from paper and publish them on CanLII.
As one of the founding members of the free-access-to-law movement, CanLII may have revolutionized the way Canadian law was made accessible, but the print was still a ubiquitous part of our publishing routine.
Another Way of Dealing With the Chinese Walls…
… is to simply destroy them. Before CanLII’s arrival on the legal information playground, LexUM, in collaboration with representatives from the judiciary, law librarians, court staff, IT consultants, and several forward-looking individuals from the commercial publishing circles, had set up the Canadian Citation Committee. The CCC is an ad hoc group formed to support the standardization efforts of the Judges Technology Advisory Committee (JTAC) of the Canadian Judicial Council (CJC).
The CCC designed and promotes several documentary standards, among them the neutral citation. The neutral citation was proposed as a unique, industry-independent identifier, assigned to a case by the court. It is formed in a simple way: by the year of the case, an acronym for the issuing court, and a serial number. For example, 2009 SCC 7 designates the case of the Supreme Court of Canada Ravndahl v. Saskatchewan, released in 2009.
Simple, open, Internet-friendly, environmentally-caring, promising: such is the neutral citation.
Who’s on Board?
Courts have gradually been adopting the neutral citation, beginning in 1999 and continuing to the present. The first adopter of the neutral citation was the Superior Courts of British Columbia. Today, all 50 Canadian courts follow the neutral citation standard. The last one to join — just this year, in fact — was the Ontario Superior Court of Justice – the toughest jurisdiction in the country (from a judicial administration and legal publishing point of view) because of the complexity of its judicial structure. As a result, all 50,000 cases issued annually by Canadian appellate, superior, and trial courts now bear neutral citations that have been assigned by the courts. To that number, we must add the decisions rendered by at least two dozen administrative tribunals which have also adopted the standard.
Probably a more important question than “Who’s on board?” is: Why are those institutions on board? Before embracing a change, people often need at least one ideological reason and at least one practical reason. On philosophical (and economic) grounds, it certainly made sense for court decisions to be freed from proprietary citation schemes. From a practical point of view, the most convincing argument was the convenience for the court to have a unique designation of its own decision at the very moment the reasons of the decision are issued.
Are Lawyers and Judges Following?
If you read carefully the first paragraph of this post, you know that the answer is yes. Lawyers and judges do cite cases using the neutral citation. They use neutral citations much more frequently than one may think.
Let’s bring in some data. On CanLII, case citations are hyperlinked if the citation comes from one of the 35 reports covered by CanLII’s citator or if the citation is a neutral citation. This allows for a citation resolution success rate of about 80%. This means that 80% of case citations on CanLII are hyperlinked. The rest, many of which are citations to proprietary commercial databases, are not.
In this context, it was tempting to verify the portion of the links attributable to the neutral citation. Or in other words, what is the percentage of case citations that contain the neutral citation – alone or among other parallel citations?
So we examined two sets of citations. The first one contained 40,000 citations of cases released in 2006, 2007 and 2008. The second one included 41,000 citations of cases released in 2007, 2008 and 2009.
The count showed the following. In data set 1 (citations pointing to cases released in 2006, 2007 and 2008), 85% of hyperlinked citations are, or contain, a neutral citation. In data set 2 (citations to cases released in 2007, 2008 and 2009), the neutral citation accounts for 91% of the links.
Data Set #1
40,000 citations
Citing cases released in 2008
Cited cases released in 2006, 2007, 2008
Links based on neutral citations: 85%
Share of all citations that are or contain neutral citations: 68%
Data Set #2
41,000 citations
Citing cases released in 2009
Cited cases released in 2007, 2008, 2009
Links based on neutral citations: 91%
Share of all citations that are or contain neutral citations: 73%
Needless to say, both the numbers and the progression look exciting. This, of course, is not the last reason we need before sending the print reports sailing into history.
It is just one more.
Ivan Mokanov is Deputy Director of LexUM. He oversees LexUM’s publishing and development activities and supervises various consulting and research projects in Canada and abroad. As a member of LexUM’s Executive Committee, he participates in LexUM’s administration and business development. Ivan is a graduate from Sofia University (B.C.L.) and the University of Montreal (LL.M.), and he is currently enrolled at HEC Montreal (M.B.A).
