Decision Names
When referring to court or tribunal decisions in our daily lives, we generally use only the name of the main party or organization involved in the case. This “style of cause” or “case name” as we call it, doesn’t have to be unique in order to be specific: in any given legal context, the names of one or two main parties often suffice to refer to a decision, its full citation being used only in formal writings. Also, with electronic databases, we can afford to refer to only one decision and other decisions made in the same dispute are often within reach of our reader through citators.
What we call the “case name” has in fact become the “decision name”, which doesn’t have to contain identifying or case tracking information, because identification and case tracking does not depend upond the case name anymore. It has become much more easier to prepare at the source, by the court or tribunal. This has not always been the case.
The “CLIC Rules”
In the early 80’s, the Canadian Law Information Council (CLIC) noted that the “style of cause” was an important tool to locate decisions and track judicial history in law reports, and that the lack of consistency among those prepared by different publishers was therefore a significant hindrance to the reliability of legal research (see Lounder, Case law reporting in Canada, 1982 and Helleiner, Standards for headnoting: case identification, CLIC, 1984). To tackle the issue, the CLIC and major Canadian law publishers developed the Standard for Case Identification (1987), which is at the origin of the “Indexed as” entry used in case tables. These “CLIC rules” included the following:
- the basic entry is composed of the name of the first plaintiff followed by the name of the first defendant separated by “v.”;
- all decisions made in criminal cases are referred to by “R. v.” followed by the name of the accused, regardless of the status of the Crown;
- initials should be inverted so that the final initial appears first, e.g. C.(A.B.);
- certain terms such as “association” or “incorporated” should always be abbreviated;
- the case name used in the first trial court decision should be used for all decisions made in the same case, from the originating court or tribunal to the last appeal.
The last rule of this list, which can be called the “unique case name rule ” provides a good example of the challenges experienced when implementing the CLIC rules. Even if it was never adopted (to my knowledge) in other countries including those sharing the common law tradition, this rule made sense. Major printed reporters, including the official FCR and SCR, agreed to implement it systematically. Easier retrieval and tracking of cases were the main expected benefits of this practice, along with the creation of more consistent case tables in law reports, with fewer cross-references. It nevertheless had several shortcomings:
- trying to predict was would be the first court decision of a case that originates from a board or tribunal is guesswork;
- the first trial court decision is not always reported at the time an appeal has to be reported;
- at various stages of the proceedings a party may cease to be part of the case or have a different role;
- cases are sometimes severed or joined together.
Despite these difficulties, the system was going to work relatively well in an environment where only a small portion of decisions were reported and carefully edited by law publishers. But throughout the 90’s this environment changed dramatically.
Electronic Databases and Neutral Citation
After the CLIC was dissolved in 1992, the Standards for Case Identification were not revised so publishers were driven to bring their own variations to it. Parallel to that, courts and tribunals began to systematically publish decisions on their own websites, and started to assign case names based on various standards. Some elements of the CLIC rules survived this period, but many of them, such as the unique case name rule described above, proved to be too difficult to implement by many courts and tribunals.
Even from a law publisher’s point of view, unique case names were not as beneficial as they were for the purpose of tracking decisions made in the same case, as reliable case history tracking tools were implemented in their electronic products. Also, full text search allows for retrieving decisions and cases by the name of any of the parties involved, even those not actually referred to in the case name.
Finally, the Neutral Citation Standard for Case Law (Canadian Citation Committee, 1999) has made case identification and retrieval much more easier and reliable than ever before. Adopted by all courts and many tribunals, the neutral citation allows for the unique identification of a decision, as soon as it is released and regardless of the specific database or report in which it is published.
Today, courts and tribunals can assign names to their decisions based on a very simple, manageable set of rules (see Canadian Citation Committee’s The Preparation, Citation and Distribution of Canadian Decisions, 2009). What we called the “case name” has now become the name assigned to a single decision, just like authors assign titles to their texts. As such, the decision name doesn’t have to refer to all decisions made in the same case or serve any other purpose beyond being concise and meaningful in a given context.
In 2011, there is no “correct” case name. The sole purpose of naming decisions is to provide a convenient mnemotechnical tool to be used by anyone wanting to informally refer to a decision. Consistency among publishers and authors should now be achieved by using the names courts and tribunals assign to their decisions.
Frédéric Pelletier, Lexum
I think I have to disagree with you, Frederic, that the “sole purpose of naming decisions is to provide a convenient mnemotechnical tool (cool word for Scrabble, by the way) for anyone wanting to informally refer to a decision.
A complete case citation gives a set of coded information to someone trained to understand it, and a correct style-of-cause gives the first clue to what the case is about and its relevance to what a researcher might be looking for. The style-of-cause is rooted in the procedure by which the case came to court. E.g. Bloggs v. Snooks is quite evidently a civil matter involving mostly likely a private law dispute between two parties where there needs to be a judgment and a legal remedy; Re Bloggs Estate on the other hand is an equitable cause of action where this is no lis between the parties, and is mostly likely calling on the court for the interpretation of the terms of a will.
Fortunately, the very editors of the McGill Style Guide understand this and under 3.3 Jurisprudence go list how to give references to the various ways in which cases come into being; these should be used.
Neil Campbell
University of Victoria
To me, the main goal around names is to have consistent names. There is more than one way to achieve consistency and this is my main point in this comment. Neil suggests another goal for case names, they must reveal the law. I respectfully disagree on that.
When I got interested by legal publishing case naming has developed as a full discipline. I remember people discussion about the need of having a law degree for those who were preparing case names. There were almost theological arguments made on the proper way to name cases. Just for the fun of it, let’s imagine a case where the police chief of a regional municipality police organization is involved in litigation with an individual representing the local section of a national union. The preparation of the only correct name could turn in a significant intellectual achievement for one needs to know the rules, the correct names of all organizations involved, and must also do some research to know the name used at the board level and so on. In the old context, rules have to be complete and complex for every publishers working independently must be able to arrive to the exact same name than the colleagues in the other publishing companies.
This extraordinary system could work as long as only relatively few decisions were commercially published (other would add in expensive commercial products) and where, in some ways, “money was no object”. However with the advent of the Internet and the multiplication of the channels for the distribution of legal material, this science of case naming was creating a barrier for all those judicial and administrative institutions which were engaged in self-publishing.
Nowadays, in many jurisdictions all judicial decisions are published and not only by commercial publishers. There are accessible for free. Globally in Canada this represents around 70,000 judicial decisions each year. An even larger set of decisions is published yearly by administrative tribunals and boards. In such a context, how can uniformity, consistency be achieved?
Courts and tribunals will not hire lawyers or librarians in numbers to craft names so perfect that any other publishers in the country following the same rules would arrive at the very same result. This will not happen and I do believe that it actually never really worked that nicely in the past.
What could be done however is to let courts establish cases name with a much simpler set of rules. These rules are still guiding the authors to name ” a civil matter involving mostly likely a private law dispute between two parties” as something like “Campbell v Poulin”. Those simple things will continue. More importantly, the consistency which is important to all of us will not be obtained by hiring professional following a complex set of rules, but by accepting as definitive the name given by the court or the tribunal according to simple rules. That way we can achieve a consistency as complete as before but in a manner more adapted to our times when all decisions are published and accessible.
Well argued, Daniel, and I don’t disagree with you in principle. My concern is that with more and more cases on the internet, or being self-published, the quest for a unique identifier may be throwing out the baby with the bathwater so to speak.
By analogy, a book has a unique identifier the ISBN – which is searchable – but it should also have a bibliographic description somewhere, so that it can be more full recorded and described. The majority of the public looking for the book don’t need to know the Marc record, but it is important for scholarship and research that it be there.
Similarly, some advocates of plain legal language would do away with latin legalism and maxims completely; fine for most documents, which should be in ordinary english or french unless there is a sufficient reason otherwise. Try explaining the concept of mens rea to someone in under a paragraph and without the influence of alcohol or a stimulating drug and you’ll see what I mean. But if you say mens reas to a lawyer, the automatically know what you mean without more words.
The same is true of case citations, I feel, I agree there should be a generic neutral case name and citation, and a unique numeric identifier, so that case can be found easily. However, a proper citation follow a style guide, gives a lot of useful information to those who need to know. E.g. (To borrow from the McGill Guide)
Confederation Trust v. Donovan tells me that this is a cvil case
but
Confederation Trust (Liquidator of) v. Donovan tells me it is a bankruptcy case
if you then add the jurisdiction, court level, and a citation to a reporter – tells me how significant the case is and whether or not I would need to look at when doing research as a precedent or informative jurisprudence.
So, both are opinions are correct, I feel; I just don’t want to do away with a very valuable research tool, which a proper citation cane be.
Neil