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