Document Type

Article

Publication Date

2024

Abstract

Citations are the vernacular that the legal profession uses to communicate the precedents that underline our arguments and analysis. They are the building blocks of legal communications and legal arguments, and lawyers and judges need to be able to rely upon the accuracy of each other’s citations to work in a stabilized democracy. Democratic stability is in jeopardy due to an erosion of norms from a variety of well-documented sources, most of which are well beyond the control of the average lawyer. But lawyers and judges can control the reliability of the authority we use in our own work product, and this Article urges legal advocates to increase our carefulness in these constantly changing times.

The idea of verifying the contents of sources before citing them sounds so simple. However, copying and pasting citations has become an accepted practice, and citations are becoming increasingly unreliable as a result. This was true before 2017, when a new citation known as “(cleaned up)” was introduced, and before 2023, when artifcial intelligence technology began to rapidly infuence the way legal professionals approach writing projects. Until these new developments are stabilized and trustworthy, lawyers must devote even more time to double-checking sources and citations.

This Article discusses the danger of simply relying upon another lawyer’s paraphrased language, a danger that escalates as the way we obtain information and sources continues to shift. Through an in-depth look at a cautionary tale from Kansas, this Article illustrates how one judge used two words to create the myth of a higher standard for discovery that has been repeatedly—and incorrectly— applied to opponents of corporations in litigation. Because people are not checking the original sources for accuracy, Kansas now has a split in the way it interprets a crucial rule, and that ambiguity could have been avoided with increased precision.

Until technology stabilizes, rules are updated, and norms are restored, this Article pleads for increased prudence when it comes to citation practices. It also promotes a return to simplicity: writers should actually read the case they are citing, and the case being cited there, and down the line. In addition to increasing the reliability of citations, this “back to the basics” approach also has the potential to increase the trust lawyers and judges have in each other and their work. And if the legal profession can restore some of the faith we have in each other, then perhaps some of the faith the public has lost in our profession and our courts might be restored as well

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