At popular request, I’ve published a new set of voting charts for the Texas Supreme Court. These charts are tied directly to my court-tracking database, so they can be kept current.

If you just want a general sense of the voting dynamic, then the top-level percentage totals are what you need. But as an advocate, I want to know which types of cases and legal arguments led two Justices to disagree. To accomplish that goal, my system allows you to drill down and see the specific opinions that led to each set of agreements and disagreements.

As a bonus, this also makes my math transparent. By clicking through, you can see exactly which cases were rolled up to compute each percentage in the chart (and, I hope, will let me know if you see any data points that need to be adjusted).

How often do the Justices vote together?

The basic voting chart shows how often the justices on the Texas Supreme Court vote together.

If you want to change the time period or focus of the chart, just pick one of the options at the top of the main page:

Those options show the pattern I look to most often: whether each pair of Justices agrees about the judgment in those cases where at least one Justice dissented.

Using that set of criteria, the pair of Justices with the closest voting record since September 2011 is Justice Johnson and Justice Wainwright at 84%. Focusing just on current Justices,¹ the closest pair is Justice Green and Justice Johnson at 70%.

Over the same time period, the pair of Justices who voted least often for the same judgment in divided cases was Justice Johnson and Justice Lehrmann, at 29%.

One of my favorite features of these charts is that you can click through to see a complete breakdown of how each individual pair of Justices voted — one a case-by-case basis:

From the detail pages, you can click on the words “Majority” or “Dissent” under each case to jump to the specific opinions about which they agreed or disagreed.

Who has written which opinions?

Each year, the OCA publishes a leaderboard of how many opinions each Justice has written, broken down by type of opinion.

I have a similar chart that shows the current count (through last week’s opinions): Texas Supreme Court opinions by Justice. You can click on the values in the chart to reach a backup page listing which specific opinions fall in each category.²

So far, the 2013 Term has not been very contentious, with just 5 separate opinions in the partial term (just over seven months so far). By comparison, the full 2012 term had 26 separate opinions and the 2011 term had 45 separate opinions.

One factor, no doubt, is that the Court is still absorbing its two newest Justices. We’ll have to wait to see how the pattern plays out for the rest of the term. (These chart will continue to be updated as more opinions are released.)

Who has joined the opinions written by each Justice?

You can think of this third category of chart as a combination of the first two.

It shows how often each Justice joined the opinions written by each other Justice. Each row on the chart shows the opinions authored by a particular Justice. Reading across, you can see how many of the opinions were “solo” separate opinions and how many were joined by each of the other Justices with which they sat on that case.

Using the controls at the top of the chart, you can also narrow its focus just to dissents, just separate opinions (concurrences and dissents), or just deciding majority opinions.

1. The second- and third-closest pairs also involved Justices who have stepped down: the pair of Justice Wainwright and Justice Guzman was ranked second, and the pair of Justice Medina and Justice Lehrmann was in third. [↩]
2. OCA does have one data set that outsiders don’t: knowing which per curiam opinions were penned by each Justice. For previous years, I have updated my chart to display the number of per curiam opinions that OCA has later reported were written by each Justice, but the backup pages don’t try to guess who wrote each of the per curiams. [↩]

Last fall, I mentioned in passing the Legislature’s new requirement that the Court compile and submit a report about how each Justice has met the Court’s internal operating deadlines.

The Court has released the 2012 version of this report.¹

It includes the usual information, such as that only seven argued cases were carried over in August to the new fiscal year that started in September (the same count I reached here),² as well as a breakdown of how many opinions each Justice wrote:

As with the OCA reports, this reveals the count of per curiam opinions authored by each Justice. Last year, there was only one outlier. The Chief Justice wrote 9 per curiams, with the other Justices all writing between 3 and 5 per curiam opinions.

The new glimpse into the Court — the one demanded by the Legislature — is the “Number of Missed Internal Benchmarks” chart, broken down by Justice:

For 2012, five of the Justices had a perfect score on the internal benchmarks. The outlier was Justice Hecht, who was recorded as missing seven of them.³

For context, the report emphasizes that “the missed benchmarks did not hinder the Court’s or any Justice’s output in fiscal 2012. Of the thirteen benchmarks missed, only two items remained outstanding at the end of the fiscal year.” (page 3)

The Court and the Legislature

It is hard to read the report without thinking about the larger questions of the Court’s relationship to the Legislature. In the past, the Legislature has shown interest in why the Court’s decisions can take time, culminating in this more detailed reporting requirement.

And since the last legislative session, the Court has tangled with several direct actions brought under a special statutory provision requiring a decision within 120 days. In the first of those, IN RE ALLCAT CLAIMS SERVICE, L.P. AND JOHN WEAKLY, No. 11-0589 , Justice Willett’s separate opinion (joined by Justice Lehrmann) raised separation of powers concerns about that time limit and about legislative intrusions into the internal processes of the Court.

The language here is not so direct, but it does offer pragmatic reasons why particular deadlines might be missed in pursuit of “thorough and accurate declarations of law.” (page 2) The Chief Justice’s concluding paragraph promises that, “[i]n the coming year the Court will continue to handle cases efficiently, but not prematurely.” (page 4)

1. I do not recall seeing a public release of the 2011 version, which would likely have been due the same day that I wrote that blog post mentioning it. [↩]
2. As of today, all seven of those remain pending. They are the cases that (today) are highlighted on my list of outstanding argued Texas Supreme Court cases. You can click on the “Date Argued” heading to resort that list. [↩]
3. For fiscal 2011, only two Justices met all the benchmarks. [↩]

The Rules Advisory Committee is meeting today and tomorrow. Among the items for discussion: a proposal to switch the Texas appellate courts from page limits to word counts.

You can check out the proposal embedded below. The core elements are:

• a word count of 4500 for petitions, the same for responses, and 2400 for petition-stage replies

• a word count of 15,000 for appellant’s briefs, the same for appellee’s briefs, and 7500 for reply briefs

• a word count of 4500 for motions for rehearing

The proposal also would change the font requirement, increasing the size of body text up from 13-point to 14-point type. Footnotes would also have a larger minimum size, taking the leap from the painfully small 10-point up to 12-point type. ¹

Font sizes and e-filing

Although the headline is the “word count” requirement, to the Justices, the big difference is likely to be this change to font sizes. With mandatory e-filing, they are reading many more documents as PDFs directly on screens of varying sizes. A larger font is likely to make this easier, especially for complex PDFs on a device like the iPad.

By adopting a word count, the Court is trying not to penalize counsel for using this larger font size (or even slightly larger sizes, if they make sense in your chosen font).

Comparing the word counts to the old page limits, the Court has adopted a fairly rigid 300 words/page conversion. Several attorneys have told me that they think this new formula will reduce their effective space in short documents, such as petitions for review. But it does not look like the proposal has changed to address those concerns. ²

Tips wanted

It has been a little while since I have pushed a federal brief up against its word limit. I suspect that I’ll frequently hit the limit on short Texas briefs under these proposed rules, such as petitions and motions for rehearing. So I’m looking for tips. How do you track the word count, live, as you write?

The wrinkle is that the official court count excludes lots of words that your word processor wants to count — such as the front matter, the issues presented, and statement of jurisdiction. To take the final count for your certificate of compliance, you can highlight the body text and precisely measure the count for the chosen selection. But repeating that process while editing is tedious.

What are some practical approaches that I can borrow?

1. These are still framed as minimum sizes. I often used a 13.5-point font size under the old rules. [↩]
2. Different types of briefs may naturally have different word counts per page, depending on whether they are about facts, policy, or complex legal issues. And then there is the wild card of how inline citations to cases show up as distinct words in the count. [↩]

Last Thursday, our local Austin Bar appellate section and the State Bar appellate section co-hosted the 2012 edition of “An Evening with the Texas Supreme Court,” which featured a panel discussion with seven members of the Court.

Here are a few notes that I jotted down:

The importance of studying what issues might interest the Court

The first few questions were about the Court’s petition practice. In Texas Supreme Court practice, the parties file a short petition for review raising each issue being brought to the Court (which can be just one or two, or in some petitions can be many issues). If the Court wants to hear more, it will order full briefing on the merits in support of the petition (before deciding whether to grant review). The Court then grants some of these petitions for oral argument.

One question to the Court was why it did not specify which issues it wanted to hear more about when it was requesting briefs. A second asked why, when the Court granted review and set the case for argument, it did not tell the parties which areas the Court thought were important to address at oral argument.

Both discussions boiled down to the same thing: Advocates have to be responsible for the issues they choose to present. The Chief explained that, when advocates have presented a large number of issues, there are often ongoing disagreements among the Justices about which issues matter. If you asked what to focus on at oral argument, you “might get nine areas of importance.” Justice Guzman called the choice of what to emphasize a “strategic call” by the attorneys as advocates.

The panel also noted a strategic downside to advocates raising “too many issues.” Because the Court has discretionary review, it may decide to wait for a petition that presents the truly important issue directly rather than have to confront it buried within a maze of other issues. (This echoed how the Court responded two years ago, when the Chief explained how a petition that raises additional issues can undermine the Court ever reaching the key issues that might need the Court’s clarification.)

To summarize: Choosing which issues to raise is the job of the advocate, and it should be done with some strategic thought about how the issues relate to each other and to pending issues on the Court’s docket.

CVSGs and other amicus briefs

On the subject of amicus briefs in general, Justice Johnson noted that some “have made a significant difference in my thought process.” He also emphasized that a good amicus brief can add credibility to a petition’s assertion that a case has broad importance, especially if it offers a “deeper perspective.” Justice Medina emphasized that filing an amicus brief earlier in the process can ensure that the Justices have a chance to absorb it before casting their votes.

With regard to the Court’s CVSG practice (in which it asks the Texas solicitor general to weigh in), the Chief noted that the Court prefers to issue those requests in advance of oral argument so that the solicitor general has the chance to request argument time.

Electronic filing and e-briefs

The panel was also asked about the new Texas e-filing system and how the Justices use e-briefs.

The overall response was that the electronic versions were much more convenient (the Justices no longer need to “lug around” boxes of briefs to continue working from home or as they travel). The members of the Court have been issued iPads, and they are using them to read briefs.

The Court also discussed a proposed change to the Texas Rules of Appellate Procedure that would move to a word count rather than a page limit for briefs. Justice Hecht noted that one goal was to enable the advocates to use larger fonts (“as some Justices prefer”), and a second goal was to allow advocates to embed exhibits or helpful items within briefs without running afoul of page limits. (There was some back-and-forth about whether the currently proposed word limits are too low. If you have a view about this, you should probably speak up now.)

Pet peeves and breaking tone

There wasn’t much discussion about pet peeves, but two of them came up.

Justice Johnson noted the importance of not over-claiming the record. He finds it actually “difficult to read” briefs once he realizes that the two sides are making diametrically opposed representations about the record. He sometimes will turn to the court of appeals’s account and find that it doesn’t match either side’s presentation. (This echoes a concern he raised at a panel last year.)

Justice Medina mentioned motions for rehearing as a concern. He said that advocates are “probably not going to beat the Court down” by the force of their rhetoric in a rehearing motion. This matches what the Justices have often said about rehearing practice.

Both of those pet peeves echo things we’ve heard before, but apparently the message has not been received by all corners of the bar. The advice might be this: If you find yourself hitting the exclamation mark on your keyboard, it might be time to call an appellate lawyer who can bring a different perspective.

When I started this blog, it seemed like every Friday orders list brought the possibility of a new opinion.

To be sure, the odds did not seem even. Weeks with a conference were good candidates. Weeks with an oral-argument sitting were not. And late August was a world unto itself.

Things might be different now. I wrote last fall about how few cases the Court had carried forward from previous terms. Of those four, five, or six cases¹, the Court has already decided three. The only cases still pending that were argued in a previous term are Bison Building Materials v. Aldridge (blog post) (by far the oldest), Edwards Aquifer Authority v. Day (blog post), and Severance v. Patterson (blog post) (on rehearing).

Last fall I wondered if this would affect the seasonal pattern of opinions: “When during the year does the Texas Supreme Court issue the bulk of its opinions?”

Now we have a little more data.

So what’s the new pattern?

I’ll show you:

All but two opinions have been issued on the Friday following a conference. Only one conference (the very first) was not followed by at least one opinion.

If I asked you to guess which two opinions this term have been outliers, decided on weeks other than a conference week, you might guess correctly: Allcat and Nestle USA. Both were brought as original proceedings with an unusual statutory deadline.

If you strike those two from the table, the pattern is very strong. With a monthly conference schedule (so far), we have had a monthly set of opinions.

Tea leaves

Looking forward, the Court has two conferences scheduled for March, one in April, and two in May. (The corresponding Fridays are March 9, March 30, April 20, May 11, and May 18.)

When summer comes, the calendar is quite different. The Court has a conference scheduled each week in June, followed by a six-week hiatus from conferences until mid-August.

The pattern described here could easily be broken as the Court digests and decides the cases that were argued this fall. But if it generally holds, it may help us offer clients a little better insight about when to expect decisions.

1. The number varies depending on how you count two cases that were, technically, abated at the magic moment when midnight struck on August 31, 2011. [↩]

With its orders list today, the Texas Supreme Court did not choose any new cases for argument or issue opinions. But it did reshuffle its argument calendar a bit.

All three of these were chosen for argument with last week’s orders (blog post):

• The Court chose an argument date for In re Stephanie Lee, No. 11-0732: February 28, 2012.

• It granted a motion to “reset” the argument in Combs v. Roark Amusement and Vending, L.P., No. 11-0261 (the case about arcade claw machines). It had been scheduled for February 28, 2012. No new date has been assigned.

• And — for the second in the past two months — it denied a party’s request to reschedule oral argument. Without comment, the orders list notes that a request was filed in In re the Office of the Attorney General, No. 11-0255. It remains set for oral argument on February 27, 2012. (A similar request was denied on December 22, 2011 in Ashford Partners, Ltd. v. Eco Resources, Inc., No. 10-0615. On that orders list, Justice Guzman noted her dissent to the denial of the motion.)

In at least one regard, U.S. Supreme Court advocates have it easy. They know about the grant of review before the merits briefs are even filed, so they can block out preparation time — many go to the elaborate ends of participating in outside moot courts.

In the Texas Supreme Court, by contrast, there can be just a few weeks between the grant of review and the oral argument date. The lawyers in the four cases mentioned above were originally given about four weeks notice of the argument date.

With two of these motions being denied in recent months, I’m curious to know what reasons for rescheduling the Court is finding persuasive — and unpersuasive.

The Court did not issue any opinions with today’s orders list, but it granted rehearing in a case about how the statute of frauds applies to purchases by a trust or partnership.

John Ganim v. J. Farouk (Frank) Alattar, No. 10-0592.

Two business partners discussed entering a real-estate transaction together to buy some property, and one of them signed for it as “Trustee” (of an unidentified trust). The two later had a falling out, disagreeing about whether the land was bought for them collectively or just by one of them.

In June, the Texas Supreme Court held that the statute of frauds did not bar enforcement of the parties’ oral agreement about this real estate purchase (opinion).

Rehearing was sought, and an amicus brief was submitted by former Justice Brister on behalf of the Episcopal Diocese of Fort Worth — which had its direct appeal about the ownership of church property accepted by the Court two weeks ago.

The amicus brief suggests that the diocese is concerned about how a broad reading of Ganim v. Alattar might affect its pending direct appeal:

… the opinion’s suggestion that a claimant to property can plead around the statute of frauds and the Texas Trust Code by asserting nothing but an oral agreement for joint acquisition of land. Can a third party — who has no title, no signed writing, and no money at risk — become owner of real estate simply by convincing a jury that an oral promise of joint ownership was made many years ago? If that is Texas law, then claimants from Rome, Canterbury, or anywhere else might ask a jury to award interests in Texas church properties based on nothing but oral testimony about “understandings” from long ago.

The Court’s grant of rehearing in Ganim gives it a little more time to sort through the broader implications.

The amicus strategy here is also instructive. Although many groups have some interest in how this rule applies to partnerships or trusts, this amicus brief had the secondary (or perhaps primary?) goal of highlighting the importance of the diocese’s pending direct appeal. Nicely done.

In light of today’s acceptance of the direct appeal in the Episcopal Diocese of Fort Worth case, I wanted to write a little more about how direct appeals work in the Texas Supreme Court.

When the Texas Supreme Court takes up a direct appeal, it uses the language that it “notes probable jurisdiction” — a phrase that parallels U.S. Supreme Court practice for its direct appeals. The Court only has limited power to take these cases, and when a litigant seeks a direct appeal, they file a “jurisdictional statement” urging the Court to accept jurisdiction. Once it has done so, the Court then requests merits briefs and can set the case for oral argument.

Generally, only injunctive relief against a state statute can support a direct appeal

What type of cases can support this narrow type of jurisdiction?

Looking for guidance, a litigant might turn to Texas Rule of Appellate Procedure 57 (“Direct Appeals to the Supreme Court”). The rule explains some of the procedure for handling “direct appeals … that are authorized by the Constitution and by statute.” Tex. R. App. P. 57.1. Discerning which appeals are “authorized” is left to the reader.

The Court’s appellate jurisdiction over a direct appeal flows ultimately from the Texas Constitution, which sets the outer boundaries for the Legislature and Court to work within:

Sec. 3-b. APPEAL FROM ORDER GRANTING OR DENYING INJUNCTION. The Legislature shall have the power to provide by law, for an appeal direct to the Supreme Court of this State from an order of any trial court granting or denying an interlocutory or permanent injunction on the grounds of the constitutionality or unconstitutionality of any statute of this State, or on the validity or invalidity of any administrative order issued by any state agency under any statute of this State.

Tex. Const. art. V, §3-b. That focus is quite narrow — just the handful of situations when an injunction turns on the constitutionality of a state statute or administrative order.

The Legislature, in turn, has further narrowed the boundaries. The statute describing the Texas Supreme Court’s appellate jurisdiction speaks only about cases in which a statute’s constitutionality is questioned — not mere administrative orders. See Tex. Gov’t Code §22.001(c) (“An appeal may be taken directly to the supreme court from an order of a trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality of a statute of this state.”)

Although administrative orders are omitted from this general grant of authority, the Legislature has sometimes made specific grants of power to hear direct appeals, such as during electric deregulation in the late 1990s.

Direct appeals are therefore very rare

While I was at OSG, I came across two situations in which the Texas Supreme Court heard a direct appeal — the state-level challenges to the 2001 redistricting process, and the 2004-2005 round of school-finance litigation.

To double check, I recently cranked up the docket database behind DocketDB and filtered it down to just direct appeals filed since 2000.

In those 10 years, I found just two other examples:

• In 2000, a set of electric-deregulation appeals came before the Court under a statute specifying that direct appeals could be taken for that class of orders.

• In 2002, the Court heard a direct appeal in an election challenge to the eligibility of a judge to be on the ballot for one party after running in the other party’s primary.

That’s it.

I did find one other time when the Court at least took the step of requesting briefing by the parties. But in that case, as in every other direct appeal in the past decade, the Court ultimately declined to hear the case.

When can private litigants file a direct appeal?

Notably, all of these successful direct appeals — before today, at least — involved the state on one side or the other. Each directly involved the legality of some state action.

The direct appeal in Episcopal Diocese of Fort Worth represents the unusual case where a dispute between two private litigants raises the right kind of constitutional question about a state law. The Court’s decision to accept jurisdiction may also have been motivated by the other pending cases in the state raising similar questions. By taking this direct appeal, the Court may hope to remove some broader uncertainty in Texas law.

So I would think twice (or more) about raising a direct appeal. Remember that the intermediate court of appeals can grant the same relief as the Texas Supreme Court, and (because of a quirk familiar to Texas appellate lawyers) those courts actually have more power to reverse when facts are disputed. If your concern is truly the speed of the answer, then having a direct appeal dismissed by the Texas Supreme Court doesn’t advance that goal.

This seems as good a day as any to talk about the Justices’ output last Term.

We know how many signed opinions each Justice wrote as soon as they’re published. But the per curiam opinions are a mystery. It’s not until the Texas Office of Court Administration (OCA) releases its year-end report that we get a count of how many were credited to each Justice.

Now that OCA has released its report, I’ve updated my chart of opinion authors, which shows:

• Justice Hecht led the way with 27 deciding opinions — 15 signed and 12 per curiams.

• Justice Johnson (19 deciding opinions) and Justice Wainwright (16 deciding opinions) also exceeded the Court’s average of slightly more than 12 per Justice. (Justice Medina and Chief Justice Jefferson were very close to that mark.)

• The most frequent author of concurring opinions was Justice Willett with 7, almost half the Court’s output of 16 concurrences. Chief Justice Jefferson was a strong second with 4 concurrences.

• The most frequent author of dissenting opinions was Justice Johnson with 6, closely followed by Justice Lehrmann with 5. Justice Wainwright also had 5, if you fold in opinions that were both “concurring and dissenting.” Every Justice authored at least one true dissenting opinion.

• No Justice wrote more per curiams than signed majority opinions. Only Justice Hecht authored more per curiams than separate (concurring or dissenting) opinions. The focus was very much on clearing out the signed opinions from the Court’s docket.

These OCA statistics focus on opinion authorship — the traditional (albeit imperfect) measure of output for appellate judges.

We might soon have some new measures, thanks to recent legislative demands for details about how individual Justices have been meeting the Court’s internal deadlines. And as it turns out, those reports are due on December 1st of each year.¹

1. You can find the language on page 3 of this very large PDF, part of the appropriations bill in 2009. [↩]

It’s been nearly three months since the start of the Texas Supreme Court’s fiscal-year term. How are things going at the one-quarter mark?

As of Monday morning, there were just two signed decisions this Term. With the opinions released Monday afternoon for Allcat, there are now three — and the Term’s first separate opinion. Along the way, there have also been five per curiam decisions. (The click-through table is on DocketDB.)

A slow start was to be expected, given the small number of cases carried forward this Term. ¹

But the conventional wisdom is that the Court always has a slow start in the fall (the first quarter), as it absorbs new law clerks. Similarly, the conventional wisdom suggests that the summer (the fourth quarter) is the busiest for opinions, as the Court tries to clear the decks before the end of the fiscal year.

Do the numbers bear this out?

I took a look at the last five years of opinions, distinguishing between signed opinions and per curiam opinions. I figured out what percentage of each year’s opinions fell into each fiscal “quarter” — 1Q (September to November), 2Q (December to February), 3Q (March to May), and 4Q (June to August). The table below represents the average of those years.²

As expected, the signed opinions increase as you progress through the quarters: roughly 10%, 20%, 30%, and 40%. By contrast, the per curiams show a slight dip in the first quarter and then are split almost evenly among the remaining three quarters.

Why the difference here?

The per curiams show a dip in the first quarter and then are fairly steady for the rest of the Term. That seems to bear out the idea that it takes a little time to get new law clerks up to speed.

Why do signed opinions show a much more pronounced pattern? One answer might be that signed opinions tend to follow argued cases and are thus dependent on the Court’s highly seasonal argument scheduling. (In recent years, arguments have been scheduled from September through March or April.)

Less obviously, the two types of decisions have different effects on the Court’s statistics if carried forward from one Term to the next. Signed opinions tend to show up as “causes” and thus are highlighted when they linger. By contrast, per curiam opinions usually result from petitions granted only at the moment the opinion issue issued — and that, before that time, were just part of the general petition pool. With those incentives, it is not too surprising if the Court prioritizes signed opinions as the summer winds to a close.

1. Only one of those has been decided: Sharyland Water Supply Corporation v. City of Alton, et al., No. 09-0223. [↩]
2. Yes, it’s just five years. Appellate geeks — like sports nuts — often trade in sample sizes far too small to be “significant.” [↩]

Our speaker at today’s Austin Bar Civil Appellate Lunch was Robert Dubose, whose topic was “Can I Cite Wikipedia? The Ethics of Citing Online Information on Appeal.”

This blog post shares a tip for how to cite Wikipedia, when you’ve already decided that you want to refer to the largest single compendium of human knowledge ever assembled.

Accuracy vs. Authority

Robert pointed out that Wikipedia tends to be very accurate, at least for topics that get a relatively high volume of community involvement. Studies show that it can be more accurate that a carefully peer-edited encyclopedia. On the other hand, the prose tends to be choppy and difficult to read in large doses — it’s a patchwork of styles from different contributors. So you probably don’t want to read the history of a major event (like World War II) on Wikipedia, even if there are a huge number of (accurate) facts.

When you think about writing a formal citation to Wikipedia, you confront the difference between authority and accuracy. It’s certainly not authoritative based on the identity of any particular author — you do not know who wrote an article, nor do you know who has contributed edits (or approved of the text and left well enough alone). But the fact that so many people have an editing pen creates a kind of distributed peer review. As Clay Shirky put it: “[Wikipedia] took one of the best ideas of the last 500 years — peer review — and expanded its field of operation so dramatically that it changed the way authority is configured.”

For a profession in the authority business — in how we cite cases, in how we pitch our own skills, in how we deal with expert witnesses — this disconnect can be hard to accept. But a crowdsourced reference can be extremely valuable as a place to start deeper research or for information more generally known.

When You Do Cite Wikipedia, How Should You Do It?

Let’s say you want to cite Wikipedia for a fact about the world. How do courts do it? Is there a better way?

The Beaumont Court of Appeals cited Wikipedia in a 2009 decision, In re K.E.L., No. 09-08-00014-CV (Tex. App. — Beaumont Feb. 26, 2009). Here’s footnote 3:

“MySpace is a social networking website with an interactive, user-submitted network of friends, personal profiles, blogs, groups, photos, music, and videos for teenagers and adults internationally.” Wikipedia, the Free Encyclopedia, MySpace, at http:// en.wikipedia.org/wiki/MySpace (last visited Feb. 3, 2009).

The Court chose this URL:

http:// en.wikipedia.org/wiki/MySpace

As has become standard for internet citations, it used the parenthetical “last visited Feb. 3, 2009.” Is that really helpful? For most websites, can you do anything at all with a “last visited” date?

If you follow the court’s link, you get the most current version of the article. On the current version as it appears today, the sentence quoted by the Texas court of appeals now reads: “Myspace is a social networking service owned by Specific Media LLC and pop star Justin Timberlake.” That’s an entirely different emphasis than it had in 2009. Indeed, there’s now a prominent section titled “Decline: 2008 – present,” explaining how it lost the social-networking wars to Facebook. In a few more years, the continually edited entry may look more like the GeoCities entry today. (“Yahoo! GeoCities is a web hosting service, currently available only in Japan.”)

It’s Not Impermanence. It’s Version Control.

That brings up a criticism you hear about Wikipedia: You shouldn’t cite it because it changes all the time, and you don’t know what your reader will see.

But with Wikipedia, as many of you know, there is a revision history. You can browse an article’s edits with its “View History” tab, right next to the search box in the top right.

This shows you a list of each edit, complete with the user name (or IP address) of the person who submitted each edit.

If you look back about 630 edits into the list, there’s a version from 5:49 AM on February 3, 2009. Some edits fall in the middle of the day, and other times the article is edited several times in one day. But we got lucky with this one. The “last visited” date might actually point us to the right place.

You Can Cite To a Permalink to Today’s Version

If you followed the links that I embedded above, you did see precisely the pages I wanted you to see — the older version from a specific moment in 2009, and the snapshot that appears right now as I’m writing this post. You can check back next week or next year, and you should see the same text.

Wikipedia uses the term “permalink” to describe this type of URL. The permalink to the current version (the one you’re citing) is listed in the left-hand column under the Toolbox menu. Click the word “Permalink” in that list, and the page reloads as itself to what your reader will see. You can then grab the URL and paste it into a brief.

You’ll notice a pink status bar when you load a page by its permalink. It tells you whether or not you are viewing the most current version. It also gives you the option to generate a diff between the link you followed and the current version — a very quick way for a reader to confirm whether the facts have changed in the intervening time. If you click on this “diff”:

You get this:

As lawyers, we should be drooling with envy. We all know what needs this type of easy-to-link version control that lets the reader easily determine what has changed over time: statutes.

Legal citations for amended statutes devolve into the kind of soup seen in footnote 2 of this same opinion: “Although the Legislature amended certain aspects of the statute that provides the terms for standard possession orders after the possession order at issue here, the changes are not pertinent to this appeal. Therefore, we cite the current version. Compare Tex. Fam. Code Ann. § 153.312 (Vernon 2008) with Act of May 27, 2007, 80th Leg., R.S., ch. 1041, § 2, sec. 153.312(a), 2007 Tex. Gen. Laws 3594, 3595 (current version at Tex. Fam. Code Ann. § 153.312(a) (Vernon 2008)), and Act of May 29, 2005, 79th Leg., R.S., ch. 916, § 12, sec. 153.312(b), 2005 Tex. Gen. Laws 3148, 3151-52 (current version at Tex. Fam. Code Ann. § 153.312(b) (Vernon 2008)).)”

Permalinks are Better Than “Last Visited.”

This is what the permalink URL looks like for the February 3, 2009 version of the MySpace wikipedia page:

http://en.wikipedia.org/w/index.php?title=Myspace&oldid=268197951.

When you are citing Wikipedia, you should be using a permalink URL that looks like that.

Last year, I was critical of the new Bluebook for how it treats URLs as if they were the names of volumes of books rather than pinpoints to specific pages. The emphasis seems to be on what the researcher did (i.e., “last visited” or “downloaded from”) rather than how the next researcher can quickly get to the right resource. As I wrote:

URLs are ugly in print, but they are “uniform resource locators.” They are built to do this job with precision. And an ugly citation that works is far superior to a pretty one that doesn’t.

When a site like Wikipedia gives you the gift of precise, persistent URLs, you owe it to your readers to take advantage of them.¹

1. As a practical matter, you should also take a screenshot or make a good printout for your own records. On the Mac, I’m a fan of the program LittleSnapper, which lets you take an image of an entire webpage, including below the fold [1MB file]. The software is marketed to web designers, but it’s handy for archivists, too. [↩]

This spring, the Texas Legislature made it easier to get appellate review early in a case.¹ These permissive interlocutory appeals require convincing both the trial court and the court of appeals that a particular key issue should be given immediate appellate review to remove any uncertainty before the trial moves forward.

The Texas Supreme Court has now amended the trial and appellate rules of procedure (PDF) to conform to that statute.

The new rules provide that:

• When the trial court thinks an order appropriate for this kind of early interlocutory review, it should say so in the order itself (or an amendment of that order). Tex. R. Civ. P. 168.

• The parties then have 15 days to file a petition with the court of appeals, including some basic elements of a brief (required tables and a statement of facts), as well as an argument focused on the statutory requirements: “why the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion and how an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Tex. R. App. P. 28.2(e). The petition can be no more than 15 pages. Tex. R. App. P. 28.2(g).

• The court of appeals can grant the parties an extension of time to file this petition. Tex. R. App. P. 28.2(d).

• A response would be due within 10 days, with any further reply within 7 days. Tex. R. App. P. 28.2(f).

• The court of appeals will generally decide whether to take the petition without oral argument and “no earlier than 10 days after the petition is filed” (giving the appellee a chance to respond). Tex. R. App. P. 28.2(j).

Is this like Texas Supreme Court petition practice?

The commentary published with the order says, “The petition procedure in Rule 28.2 is intended to be similar to the Rule 53 procedure governing petitions for review in the Supreme Court.” That is true as a matter of form, with the page limits and quick deadlines.

But the differences are also significant. While the Texas Supreme Court has broad discretion over which substantive issues it wants to hear at all, this rule is focused on timing — should the certified order be addressed now on permissive appeal, or should it wait for a later merits appeal? The question is not importance to the jurisprudence, but optimizing the efficiency of a single suit.

A more subtle difference is that, in the Texas Supreme Court, it is common for a respondent to simply waive filing a response until one is requested by the Court. These rules do not provide for that “waive and wait” process. If an appellee wants to oppose, they have ten days to file a response.

The more obvious comparison is with federal permissive interlocutory appeals under 28 U.S.C. 1292(b). Federal appellate courts do not always agree to take up these appeals, even after an order is certified by the trial court. It will be interesting to see which types of orders Texas trial courts agree to certify — and which the courts of appeals choose to decline.

1. The new language of Texas Civil Practice & Remedies Code §51.014:

   (d) On a party’s motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:

   (1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and

   (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation .

   …

   (f) An appellate court may accept an appeal permitted by Subsection (d) if the appealing party, not later than the 15th day after the date the trial court signs the order to be appealed, files in the court of appeals having appellate jurisdiction over the action an application for interlocutory appeal explaining why an appeal is warranted under Subsection (d). If the court of appeals accepts the appeal, the appeal is governed by the procedures in the Texas Rules of Appellate Procedure for pursuing an accelerated appeal. The date the court of appeals enters the order accepting the appeal starts the time applicable to filing the notice of appeal. [↩]