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Citation of Cases in the Context of a Document

The Citator provides that, "The basic purpose of legal citation is to allow the reader to locate a cited source accurately and efficiently." (I.2)

Furthermore,

In all types of legal writing, whether by scholars or by practitioners, it is customary to cite an authority or authorities to show support for a legal or factual proposition or argument. An author may cite to authority that directly states his or her legal or factual proposition; authority that does not specifically state the author's proposition but directly supports it; authority that less directly supports the author's proposition; authority that contradicts the author's proposition; and authority that provides background material that might be useful to the reader in considering the proposition.

(I.3)

Bills, supra, explains when to cite not only in greater detail, but considerably more clearly:

"[W]hen to cite sources

Although scholars of various disciplines differ on when to cite and not cite sources, most follow the basic principle that a citation is required to any source of a direct quotation, paraphrase, fact or idea. Lawyers, finding the bare assertion of a legal theory without authority to be less than useless reduce the principle to its elemental form "cite everything!"[1] Winning a case for one's client requires that a court be persuaded that statutory or case authority demands the requested ruling. A court will not take a lawyer's word for it, or give credence to his opinion that the law is what he says it is. A court must know which authority. Therefore, "[l]awyers cite the law."[2]

The citation principle may be divided into six basic rules. The first two cover direct quotation, paraphrase and summary of language, facts and ideas. The third considers information that may be regarded as "common knowledge." The fourth, often considered a recommendation rather than a strict rule, asks for citations to sources that supply different or additional views on the same or related topic that the reader might find relevant or helpful.[3] The fifth rule specifies citations to sources that cannot be defined as written texts, including such materials as public lectures, recordings, films, graphs, statistical tables and computer data. An additional rule, addressed in legal writing courses, requires citation to all sources relied upon for authority to support any legal proposition or rule....

* * *

1. Cite sources for all direct quotations.

There is no exception for this rule since scholars, judges and other lawyers expect to know the original source of every quotation whether for the purpose of simply finding it there, checking for accuracy, or when appropriate, perhaps using it in their own work.[4]

2. Cite sources from which language, facts, or ideas have been paraphrased or summarized.

A paraphrase requires the same citation as a quotation. This rule helps avoid a common form of plagiarism: not only paraphrasing an unacknowledged source's idea(s), but also literally adopting ("lifting") certain specific phrases or stylistic expressions without quotation marks and explicit acknowledgment of their original source. Students are cautioned to organize any summary or paraphrase in their own distinctive manner and style.[5] As a general rule, each paragraph containing paraphrased material should contain a cite to the source. A persistent and potentially dangerous myth is that plagiarism is harmless if unattributed material consists of less than one page in a typical 20-page student paper. This is not so! Although an individual instructor or school may sometimes find that a small amount of "accidental" plagiary does not warrant formal disciplinary action, the student's work remains flawed. Not only is the non-plagiarized remainder suspect, any positive impact on the reader is lost. Such an incident of plagiarism, however "minor," may rate a failing grade from the professor and irreparably damage a student's reputation.

3. Cite sources for idea(s) or information that could be regarded as common knowledge, but which a) was not known to the writer before encountering it in a particular source, or b) the reader might find unfamiliar.

Less clear than the two previous rules, this third rule addresses situations where no definitive boundary exists between an idea that did not originate with the writer but seems generally well known (i.e., that the federal legislature is bicameral),[6] and a generally well-known idea treated as a distinctive or seldom understood concept (i.e., Judge Bork's controversial theory on the limited scope of the First Amendment).[7] In the first case, some legal scholars omit a citation when the idea can be found in five or more independent sources. In the second case a formal citation is always required. When in doubt, cite the source.

4. Cite sources that add relevant information to the particular topic or argument propounded.

This "rule" allows the writer to supply related or parenthetical information without cluttering the body of the paper with extraneous details. Restraint should be exercised in the use of supplementary citations. Too many will distract the reader from the flow of the argument.[8]

5. Cite sources from and for other kinds of specialized materials.

This fifth rule extends the application of the preceding four rules to other forms of work such as lectures, recordings, films, interviews, letters, unpublished manuscripts, graphs, charts, tables, etc.

6. Cite sources relied upon for authority to support any legal proposition or rule.

Because judicial action is governed by the principles of precedent and stare decisis,[9] adherence to this rule not only avoids plagiarism from judicial opinions, statutes or secondary authority, it also is essential to effective lawyering. Students might sometimes feel embarrassed by writing that relies on secondary sources, and try to paraphrase a hornbook, treatise or law review without providing citations to anything but the primary authority.[10] Not only is it obvious to an experienced reader that a student has relied on a secondary source (even without citations), the student risks a charge of plagiarism.[11] Although original analysis of a court decision is always preferred, there is no shame in using a secondary source so long as a proper foundation is laid and the complete citation is given.[12]

* * *

The excerpt, pragmatically translated, seems to require a citation following each and every sentence in a legal document. However, matters of common sense may be employed. For instance, sometimes a general introduction to a document could become tedious if it is overladen with citations, as could other portions of the document.

Discretion should be employed. For instance, if an entire paragraph is devoted to discussing aspects of the court's rationale, then it is acceptable that the citation to authority be given only once. Similarly, when giving the facts of the case, it is probably not necessary to give a citation following each sentence, but rather one citation following the final sentence of the paragraph.

That is not to say that citations need only be given either at the beginning of, or at the end of a paragraph. If a writer is highlighting a specific point from a case, a citation should be given. If the writer has written a paragraph containing sentences covering different legal points, citations should be given following each sentence. If the writer would like to highlight for the reader where, in the text of a case, a certain piece of information is given, a citation should be given.

If this sounds as if there's really no rule at all, this is only partially true. Differing audiences have different perceptions of exactly when a citation is necessary. This is true in law school, and this will be true after law school.

Perhaps the writer needs to determine whether a citation is necessary by answering the following questions:

1. Is the sentence a direct quote? (If yes, then a citation is necessary.)

2. Is the sentence the paraphrase of a quote? (If yes, then a citation is necessary.)

3. Is the sentence an important legal concept? (If yes, then a citation is necessary.)

4. Is the sentence one in the midst of a string of sentences describing the facts? (If yes, then a citation is probably unnecessary.)

5. Is the sentence one in the midst of a string of sentences essentially discussing the same matter regarding one particular case? (If yes, then a citation is probably unnecessary.)

6. Do you want support for something you are saying? Is it important that others are saying it too? (If yes, a citation is necessary.)

Rules for Citing Cases in Text

Rule 1.1 and Practitioners' Note P.2 tell the writer that a citation is a sentence. This means three things.

1. It can be punctuated just like any sentence;

2. It will begin with a capital letter and end with a period, and

3. It may become an independent clause within a sentence, which would require appropriate punctuation.

If the citation supports an entire sentence it will itself be a separate sentence:

An at-will contract is terminable for any reason any time. Geary v. United States Steel Corp., 319 A.2d 174 (Pa. 1974).

If, on the other hand, the citation supports only part of a sentence, it becomes an independent clause within a sentence. It follows immediately the proposition for which it is being cited:

While in many jurisdictions at-will contracts may be terminated for any reason, Geary v. United States Steel Corp., 319 A.2d 174 (Pa. 1974), in California, an employer may not fire an at-will employee for his refusal to commit perjury, Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25 (Cal. Dist. Ct. App. 1959).

Now, let us talk about the various forms these citations may take.

1. The first time a case is cited, its full, formal, complete citation should be used.

Example:

An at-will employee has a cause of action against his employer when he is discharged for failing to commit perjury. Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25 (Cal. Dist. Ct. App. 1959).

If the first time a case is cited it is introduced with a quote, the page from which the quotation is taken is offset from the first page of the case by a comma. In addition, it has become customary to use a “pinpoint” cite to indicate where the information was taken the first time a case is cited, no matter whether there is a direct quote in the sentence.

Example:

Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25, 28 (Cal. Dist. Ct. App. 1959).

Example within the context of a paper:

In Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25, 28 (Cal. Dist. Ct. App. 1959), the court stated, "We are of the opinion, based upon the preceding discussion, that plaintiff alleged sufficient facts to show that his discharge was improper and that he was entitled to civil relief as a consequence thereof."

Note that when the full citation is given following a quote, the page number should again be offset by a comma.

Example:

"We are of the opinion, based upon the preceding discussion, that plaintiff alleged sufficient facts to show that his discharge was improper and that the was entitled to civil relief as a consequence thereof." Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25, 28 (Cal Dist. Ct. App. 1959).

2. After a case is cited in full, a full citation to the case need not be given again. Instead, a short form of citation replaces the full citation. Case short forms are governed by Practitioners' Note P.4, Rule 4 and Rule 10.9, Taken together, these rules permit use of a short form for a case when the subsequent citation is in the same general discussion as the original citation, and the reader will understand it easily.

There are two different short citation forms for cases.

a. The first of these is used in one of two situations:

i. When there are cites to other authorities intervening between the subsequent cite and the last previous cite; or

ii. when the reader would be helped by a fuller citation.

This short form consists of whatever source citations are contained within the "proper" citation and the page number(s) on which the information is found. The name of the case is either shortened to the plaintiff's name, or omitted. The date is also omitted.

Examples:

174 Cal. App. 2d at 185, 344 P.2d at 28. (Dual citation format.)

344 P.2d at 28. (“Official” citation format.)

Petermann, 344 P.2d at 28.

Not:

Petermann at 185, 344 P.2d at 28.

or

Petermann at 28.

Example within the context of a paper:

The Petermann court was of the belief that the plaintiff alleged sufficient facts to show the discharge was improper. 344 P.2d at 28.

Please note the following:

1. The beginning page of the opinion need not be given.

2. The page on which the information is found is not offset by a comma, but rather the comma is replaced by an "at."

3. Neither the year of the decision nor the jurisdiction is included.

Note also that the short form may appear with the plaintiff's name if that name is not given separately in the sentence.

Example:

A California appellate court has held that an employer may not fire an employee for refusing to commit perjury. Petermann, 344 P.2d at 28.

Id.

The second short form citation uses the term "Id." Id. is derived from the Latin term "idem," which means "the same as something that was mentioned previously." It may be pronounced with a long "i" sound making it "eyed," but is more often pronounced with a short "i," pronounced as "id," as in the ego and the id.

1. When citations to the same case follow one another, and there is no cite to another authority intervening, id. is used as a short form to replace the case name, the reporter number and the reporter abbreviation of the immediately preceding citation.

Example:

Id. at 28.

Example within the context of a paper:

In Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25 (Cal. Dist. Ct. App. 1959), the court held that an at-will employee has a cause of action against his employer when he is discharged for failing to commit perjury. The court was of the belief that the plaintiff alleged sufficient facts to show the discharge was improper. Id. at 28.

Please note: Like common rules of capitalization, id. is capitalized when it begins a sentence, but would not be if it fell in the middle of a sentence. Note that both letters and the period are underlined. (See Practitioners' Note P.4) In addition, notice in the previous example that a full short form for Petermann need not be used before id. is used. A full short form is necessary only when there are intervening citations. Finally, please note especially that when the citation to a case involves parallel sources, that parallelism follows through every subsequent cite. Consequently, if the cite you use requires two reporters, the Id. short form will have two reporters. Logically if your full citation has only one reporter, the short forms will contain one reporter.

2. Id. may follow the full citation of a case, or the short form citation of a case:

In Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25 (Cal. Dist. Ct. App. 1959), the court held an at-will employee has a cause of action against his employer when he is discharged for failing to commit perjury. This holding differed from Cleary v. American Airlines, 168 Cal. Rptr. 722 (Ct. App. 1980), which discussed a bad faith exception to the at-will doctrine. In Petermann, the court found the plaintiff's discharge was improper. 344 P.2d at 28. It also found the plaintiff to have no administrative remedy. Id. at 29.

Note that since Cleary was mentioned in the midst of the Petermann discussion, the third citation of the paragraph is the short form of Petermann, rather than simply "Id. at . . . ." In addition, had another reference to Petermann followed the final sentence of the paragraph, it too would have been in the "Id. at . . . ." citation format.

3. If two subsequent case references are identical, Id. replaces the entire citation.

Example:

In Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25 (Cal. Dist. Ct. App. 1959), the court held that an at-will employee has a cause of action against his employer when he is discharged for failing to commit perjury. The court reasoned that the plaintiff alleged sufficient facts to show his discharge was improper. Id. at 28. The court also found that the plaintiff was not given a trial before his discharge. Id.

Please note, if the paragraph continued with information from the same page in Petermann, the next citation would again be Id. However, if the next sentence contained information from a different page in Petermann, the writer would have to identify that page via the "Id. at . . . ." short form.

Example:

. . . The court also found that the plaintiff was not given a trial before his discharge. Id. It was commented that such action was appealable to the union. Id. at 29.

Example:

In Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25 (Cal. Dist. Ct. App. 1959), the court held that an at-will employee has a cause of action against his employer when he is discharged for failing to commit perjury. This holding differed from Cleary v. American Airlines, 168 Cal. Rptr. 722 (Ct. App. 1980), which discussed a bad faith exception to the at-will doctrine. In Petermann, the court found the plaintiff's discharge was improper. 344 P.2d at 28. The court also commented that the plaintiff alleged sufficient facts to demonstrate his point. Id.

Please note that because a discussion of Cleary intervened in the Petermann discussion, unlike in Example #1, a citation using Id. did not immediately follow the full citation to Petermann (a full cite to Cleary did) and thus when Petermann was next mentioned, a short form was necessary. Note also that because the final sentence contained information found on the same page as the citation immediately preceding it, there was no need for an Id. at . . . . citation, but merely an Id.

An example of a different conclusion to the previous example would be:

In Petermann, the court found the plaintiff's discharge was improper. 344 P.2d at 28. It was commented that such action was appealable to the union. Id. at 29. The court concluded that the plaintiff should have exhausted his remedies with the union. Id.

In this example, the Id. did not follow the full short form of Petermann but followed the "Id. at . . . ." variation.

Putting our rules together, we would have something that looks like this:

The general rule of at-will employment is that an at-will employee may be discharged at any time for any reason. Cal. Lab. Code § 2922 (West 1992). Various California courts, such as the court in Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25 (Cal. Dist. Ct. App. 1959) and in Cleary v. American Airlines, 168 Cal. Rptr. 722 (Ct. App. 1980), have made exceptions to this rule.

In Petermann, the court held that an at-will employee had a cause of action against his employer when he was discharged for failing to commit perjury. 344 P.2d at 28. The court found that the discharge was not only improper, but the plaintiff had no real administrative remedy. Id. at 29. The court ultimately reasoned that such a discharge was in violation of public policy. Id.

This differed from the view of Cleary. In Cleary the court found a cause of action based on the breach of a "good faith" covenant. 168 Cal. Rptr. at 722. However, it should be noted the court in Petermann was not confronted with the question of whether there was a breach of covenant. 344 P.2d at 25. Thus its determination of the issue hinged on a different premise than the premise in Cleary.

Other Examples

Example #1:

In Cleary v. American Airlines, 168 Cal. Rptr. 722 (Ct. App. 1980), the court held that the at-will employment doctrine would not apply in situations where an employer breached a covenant of good faith. Because the employer did not provide his employee with a hearing, the court found the employer did not act in good faith. Id. at 724. This holding differed from Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25 (Cal. Dist. Ct. App. 1959) in which the court focused on the fact that the employer asked his employee to commit perjury.

Example #2:

In Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25, 29 (Cal. Dist. Ct. App. 1959), the court stated, "We are of the opinion that the issuance of the withdrawal card to plaintiff constituted a ruling or decision adverse to plaintiff as a "member" of the union and was appealable within the union itself." The situation was similar to that in Cleary v. American Airlines, 168 Cal. Rptr. 722 (Cal. Ct. App. 1980). In this case, the plaintiff was a union member, id. at 724, similar to the plaintiff in Petermann who was a member of the Teamsters, 344 P.2d at 26

Example #3:

In Cleary v. American Airlines, 168 Cal. Rptr. 722 (Ct. App. 1980), the court held that there was an exception to the at-will employment doctrine in the form of a breach of good faith covenant. The court reasoned that in each agreement between an employer and an employee there exists implicit civility. Id. at 724. The court in Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25 (Cal. Dist. Ct. App. 1959) only vaguely touched upon this aspect of at-will employment. However, the Cleary court emphasized it strongly. 168 Cal. Rptr. at 724.

Example #4:

"It is thus clear that as to his status as a member of the union plaintiff should first exhaust his internal remedies before resorting to the courts and that he has failed to do this." Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25, 29 (Cal. Dist. Ct. App. 1959). By stating this, the court determined that the plaintiff might very well have a cause of action had he pursued the appropriate remedy first. Id. at 28. However, the court ultimately did find that a portion of the plaintiff's cause of action would be sustained. Id.

Example #5:

Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25 (Cal. Dist. Ct. App. 1959) established an exception to the at-will doctrine in California. Cleary v. American Airlines, 168 Cal. Rptr. 722 (Ct. App. 1980) established an additional exception when the court held that at-will employment contracts include an implicit good faith covenant. Apart from these and other specific cases, the general rule is that an at-will employee may be discharged at any time for any reason. Id.

In Petermann v. International Bhd. of Teamsters, Local 396, 344 P.2d 25 (Cal. Dist. Ct. App. 1959), the court specifically held that an employee who is discharged for failing to commit perjury has a cause of action for wrongful discharge despite the fact that he is an at-will employee. Although the court in Cleary centered on a different factual aspect, the court came to a similar result. 168 Cal. Rptr. at 724. The Cleary court, like other at-will cases found the at-will doctrine too strict to be pragmatically applied. Id. This was in direct accordance with the holding in Petermann.

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[1]See P. Merkel & R. Talmo, Legal Research and Writing, Course Materials 4 (1988).

[2]Id.

[3]See Samuelson, Good Legal Writing: of Orwell and Window Panes, U. Pitt. L. Rev. 149, 161 (1981).

[4]There is no consensus in legal academe whether the "lifting" of quotations from secondary source without additional citation constitutes plagiarism. It is, however, bad research methodology. One should always read quoted material in the original source.

[5]Note, however, that excessive paraphrasing tends to weaken the rhetorical affect of any work.

[6]A term now in common usage, originally applied by Jeremy Bentham to the division of a legislative body into two chambers. Black's Law Dictionary 147 (5th Ed. 1979).

[7]Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 26-28 (1971).

[8]"Encountering [a footnote] is like going downstairs to answer the doorbell while making love. Noel Coward." Bowersock, The Art of the Footnote, 58 Am. Scholar 54 (1984), cited in Austin, Footnotes as Product Differentiation, 40 Vand. L. Rev. 1131, 1152 (1987).

[9]C. Kunz, D. Schmedemann, C. Erlinder & M. Downs, The Process of Legal Research 52-54 (1986).

[10]W. Statsky & R. Wernet, Jr., Case Analysis and Fundamentals of Legal Writing 418 (2d ed. 1984).

[11]Id.

[12]Id.

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