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Bluebook Fail: Data Mining of Texas Appellate Briefs Reveals a Non-Uniform System of Case Law Citation

In theory, Texas attorneys’ practice of citing legal authority is governed by The Bluebook and the Texas-specific Greenbook. In practice, their case law citations are anything but uniform — at least when it comes to newly-released Texas Supreme Court decisions for which a __ S.W.3d __ volume and page number is not yet available. That is the conclusion of this modest-scope citation-mining study of recent appellate briefing (N=162), which identified several dozen different citation formats for the very same case. 
 
On April 26, 2019, the Texas Supreme Court handed down a broadly-sweeping opinion in a commercial lease dispute that establishes the method by which the reasonableness and necessity of attorney’s fees is to be determined in cases in which a contract or a statute authorizes the shifting of liability for fees to the opposing party. The opinion was not published in the South Western Reporter until a few months later. In the meantime, Texas attorneys had occasion to cite the new state supreme court precedent more than a hundred times in briefing in the fourteen intermediate courts of appeal and in the Texas Supreme Court itself, as well as in the much higher number of cases winding their way through the hundreds of trial courts around the state. 
 
A systematic examination of the corpus of appellate briefing e-filed over the course of a seven-month period following the release of the SCOTX opinion reveals a surprising lack of uniformity in how Texas appellate attorneys have been citing a key precedential case in the high court’s evolving jurisprudence concerning attorney's fees in fee-shifting cases. 
 
There are marked differences with respect to the case identifiers that are provided in the citation (official appellate docket number, Westlaw cite, Lexis cite, Tex. Sup. Ct. J. cite) and in what combinations; there is variation in the use of spaces, punctuation, and abbreviations, and there are even two distinct case styles for the very same case: Rohrmoos Venture v. UTSW DVA HEALTHCARE, LLP, and Venture v. UTSW DVA HEALTHCARE, LLP. 
 
In addition to alternate citation styles that conform with the Bluebook and the Greenbook, there are instances of citation strings that contain typographical and substantive factual errors, such as a misspelled or incomplete party name, and a wrong opinion release date. 
 
While the heterogeneity in citation formats may not have much impact on the persuasiveness and effectiveness of the advocacy, it creates problems for machine-reading and machine-processing of the corpus of appellate briefs, and therefore affects the quality of empirical studies of citation frequency, citation patterns, and citation networks. 
 
Inconsistent citation practices also impede comprehensive search for citing documents because text processing software may fail to recognize — and may thus fail to process — nonstandard and outright erroneous citations. When such programs miss what would otherwise be qualifying instances of citations to a particular legal precedent in the legal corpus because of a nonstandard character string or inconsistent syntax, the quality of the compiled indexes, and of search results generated with them, will be adversely affected. The same applies for citators and citation studies that aim at comprehensive coverage. 
 
The obvious policy prescription flowing from the empirical results of this study is that the Texas Supreme Court should use its rulemaking authority to standardize the citation format for recently released opinions, for which a Southwestern cite is not yet available. At the minimum, the Court could mandate the inclusion of the official appellate case number and the opinion release date in such citations. Such basic case metadata will then be sufficient to locate the opinion corresponding to the case cite on the website of the Texas judiciary. 
 
Routine inclusion of the official docket number in Texas case law citations will facilitate universal public access to the cited legal authority irrespective of whether a user is a Westlaw or Lexis subscriber, and can also be used to search for a case on Google Scholar and other open-access legal resources on the Internet.