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Why Proofreading Matters for Litigators as Much as Transactional Lawyers

By Theo Lister on February 23, 2018
Theo Lister

Theo is a Product Manager at Litera Microsystems. He has spent the past 4 years working in legal technology focusing on how lawyers work within the document lifecycle, mostly focusing on [the review and collaboration of document drafting]. Before that he studied postgraduate law at University College London and the University of Oxford.

Proofreading has different meanings for different types of lawyers. A litigator will rarely check documents that transactional attorneys spend most of their time with, unless it is the basis for litigation or a settlement agreement.

Bluebooking, the practice of checking citations in accordance with The Bluebook: A Uniform System of Citation, also has varying degrees of interpretation. Does it mean checking the written content of citations and making sure they’re in the appropriate format? Is it actually pulling the case details and ensuring that they are relevant? What Bluebooking means depends on the circumstances (How much is riding on this? How much time do I have?) and the attitudes everybody involved has towards the practice. The different attitudes range from the two extremes of seeing it as mandatory or unnecessary, with many falling in between.

Mandatory and Fear-Inducing

“I live in absolute terror of submitting a memorandum & order with improper citations.”

Litigators with this approach take extra caution to make sure everything is correct. Nobody wants to be called to task by a judge and some lawyers will fret at the possibility of that happening due to bad citations. This is one of the rarer approaches, but is commonly seen amongst students, trainees, and people that are newer to the format. Because its importance is compounded throughout college and often delegated by senior lawyers, it can be easy to sweat the details. In Espitia v. Fouche, 758 N.W.2d 224, 2008 W.I. App 160, 2008 W.L. 4058057 (Wis. Ct. App. 2008), a lawyer was actually fined for sloppy Bluebooking. This is an extreme example, as the case cited was unpublished and cited under the wrong party name, which shows some of the strongest consequences of not double-checking submissions.

Best Practice, but Not Essential

“Not following citation rules is generally like not following the rules of spelling.”

Litigators that follow this approach, will make sure everything is generally correct, but will not spend too much time on this. When time pressures run up against perfectionism, it is usually styling and presentation that are skipped, but it’s sometimes exact Bluebooking too. As long as a citation isn’t too vague (e.g. Smith v. Smith), it is generally possible to research the particulars of a case or article quickly enough, especially with the rise of web services dedicated to case searching. Despite varying from the accepted standard, it is still perfectly possible to communicate what was intended. However, much like producing a piece of work containing spelling or punctuation mistakes, it does not make the best impression and can draw inquiry to other parts of the work. If a judge starts to doubt your ability to cite in the right format, they may begin to doubt the authority of your citations or the logic to your arguments.

This happens at the client level as well. I once received a letter, from a lawyer I had instructed, with the wrong party name in the subject line. Even though it was likely an error with their form filling software, your clients are renting your expertise and trying to outsource the time they spend on legal matters. Shining doubt on your expertise is an easy way to put them back on the market for new counsel.

Unnecessary and Time Consuming

“Cite-checking? I thought that was what first year associates are for.”

This is not seen very often, but litigators that follow this approach do not want to spend any extra time proofreading. It could be just bravado, as I’ve never met a lawyer with this view, but some say that it’s not necessary if you still get the job done. Considering that pedantry is something frequently considered to be an essential part of the practice of law, this may come across as a strange opinion. As the Bluebook is compiled by Law Review Associations there exists a body of thought that its standards are divorced from reality. The thought is that people in the real world, including practicing lawyers and judges, have more important things to worry about. 

Wherever you lie on the spectrum, there is always an advantage to quickly checking the citations you’ve referenced in your work, whether you’re painstakingly double-checking or seeing what needs to be delegated to a junior associate. Luckily, Litera Microsystems offers multiple products that can complete these necessary tasks quickly and efficiently. 

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