June 9, 2011

Controversial proposal suggests abandoning the Yellow Book for the Bluebook

Employing proper citation form is a primary way to demonstrate that you’re a careful and astute appellate practitioner. As we discussed here, for decades the preferred citation style in California appellate courts has been found in the California Style Manual, colloquially referred to as the “Yellow Book.” We therefore read with interest this proposal by the Orange County Bar Association to amend the Rules of Court and the Government Code to require that all documents filed in California courts, and all California appellate opinions, “be in the style established by The Bluebook: A Uniform System of Citation.”

The reason given for the proposed change is: “Most lawyers work hard in law school to master the citation forms set forth in The Bluebook, which has long been the traditional legal citation guide throughout the country. But California puts out its own citation guide: the California Style Manual. California courts are required to follow the California Style Manual by the Reporter of Decisions, who acts under authority of the California Supreme Court and Government Code section 68902. Lawyers in this state are therefore encouraged—and lawyers for the state are required—to abandon their hard-won Bluebook expertise and learn a confusing new citation system.”

We think it is a useful exercise to re-assess existing practices from time-to-time to determine whether they should be changed. That said, based on the reactions we have heard thus far, this proposal does not appear to be gaining traction among appellate practitioners. By and large, they do not seem to find the Yellow Book confusing and many think its citation form superior to that of The Bluebook. Therefore, absent a more persuasive reason than has been articulated, we would be surprised to see a major departure from the system presently followed by tens of thousands of California judges and lawyers. Indeed, the difficulty and expense of retooling courts’, firms’ and publishers’ forms and macros would, in itself, be a substantial impediment to abandoning the Yellow Book.

2 Responses to “Controversial proposal suggests abandoning the Yellow Book for the Bluebook”

  1. We’ve had some further offline exchanges on this topic, and for the benefit of our readers, here’s one follow up note drawn from that back-and-forth:

    It’s an interesting question, and there’s already a lengthy comment to our blog post that articulates several arguments in favor of the proposal. But many who have expressed opinions on the merits of the two formats have said they find Yellow Book makes reading a brief or opinion easier, because the visual cue of the parentheses allows the reader more quickly to distinguish between text and citations, and puts the date earlier in the citation than the perhaps less important volume/page information. We haven’t heard anyone express any substantive preference for the Bluebook aside from saving a few characters here and there.

    As for California going its own way, there probably wouldn’t be any real argument in favor of departing from Bluebook if that were already in use here, but by the same token, we haven’t heard any strong explanation for overcoming the “stare decisis” factor of decades of Yellow Book use. Repurposing text from prior filings, and borrowing language from cases, would for many years be a somewhat irritating task if we switched systems now. Of course, judges, lawyers and support staff would adapt, although it may be easier for law students (who typically have done only a handful of writing projects for school using Bluebook) to adapt to Yellow Book, rather than the other way around.

    This may be a solution in search of a problem, but as we said in our post, it’s good to rattle the cage now and then.

  2. This cage could use some more rattling, and I’m glad to see Anonymous taking up the cause. It’s not just “a few characters here and there.” The “p.” & “supra”, as already mentioned, are entirely unnecessary and they add up. But there is more.

    There’s also the use of full case names in subsequent citations. And there’s the unnecessary signaling that a shortened case name will be used, such as the unnecessary parenthetical in an opinion today: “Instead, Grocers contend the Ordinance is impliedly preempted under the Machinists doctrine. (Machinists v. Wisconsin Emp. Rel. Comm’n (1976) 427 U.S. 132 (Machinists).)”

    We could also do without parallel citations in the opinions. They take up a ton of space and are not necessary with the electronic research tools that most practitioners use.

    These characters add up, take up space, break up the flow of the prose and add little. For those of us who spend much of our workday reading briefs and opinions, it all adds up, particularly with documents dense with citations.

    If stare decisis does not always prevent a court from overruling a precedent on a constitutional point of law, then surely we can modify a style of citation. Do we have to go to Blue Book? Not necessarily. A modified CSM could be used (most lawyers can keep the two styles straight in their heads) with shortened citations, but perhaps retaining earlier placement of the dates if that is important to CSM loyalists.

    As for the irritations associated with transitioning, we’d all get over it quickly, and the difficulties could be minimized by allowing attorneys to choose either old-CSM or the favored new-CSM within a document for a period of time, just as there is now a choice between CSM and BB. That way an attorney recycling paragraphs from prior filing wouldn’t have to re-do all the citations.

    This shouldn’t be about adopting BB (although I wouldn’t be bothered by that), but about improving CSM, which can be done with or without switching to BB. Of course, any style manual will likely be unduly rigid. As Judge Posner recently explained in a criticism of the BB, ” Within the same document, uniformity is desirable because without it readers will puzzle over whether the differences are accidents or have some intended significance. But across documents, slight differences in citation form are untroublesome ….” It is for that reason that I abandoned the “p.” and the “supra” long ago in my state court briefs, and I’ve yet to be sanctioned for it! By permitting either CSM or BB in briefs we already recognize that consistency within a document is more important than standardization.

    Sorry for the length of this comment – I obviously needed to get this off my chest. Now we can move on to more important concerns, like the lack of electronic copies of reporter’s transcripts in state court appeals.

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