Saturday, May 24, 2008

using index cards to construct a Table of Authorities

Nancy's post about using index cards to create an outline spurs me to offer another classic use of index cards, creating a brief's Table of Authorities. For readers unfamiliar with this instrument of torture, a Table of Authorities is an index to every source cited in a brief and its location, even when the source appears multiple times. (Yes, I know that word-processing software can generate a table, and I have seen more than my share of good and abominable examples. I offer this simple method as a low-tech alternative.) I'll share below the instructions I give to my students.

  1. For each authority cited in the brief, prepare one 3 x 5 or 4 x 6 index card. Do not put more than one authority per card, or you risk overlooking one of the authorities when it comes time to create the table. This is already a tedious task; no reason to make it even more stressful!
  2. Using your citation manual, look up the applicable rules and write that authority’s full citation on an index card (omit footnote numbers and pinpoint page numbers, even though you may have provided that information in the body of the brief). If your appellate court rules require parallel citation, be sure to get all the necessary information for both the official and unofficial reporters.
  3. For every primary authority, go on line and use a citator (e.g., Shepard’s, KeyCite) to (a) ensure that the authority is still good law, and (b), for cases, to obtain any relevant and required subsequent history (if you're not sure what that is, read all of Rule 12.8 in ALWD or Rule 10.7 in Bluebook). Add subsequent history--if any--to the full citation of the case.
  4. For every secondary authority, be sure that you have all the citation information required by ALWD Rules 22 and 23 (e.g., full name of author, edition number, publisher, date), or if you use Bluebook, Rules 15 and 16.
  5. For authorities that are non-traditional (e.g., websites or blogs) or less common (e.g., treaties), use your citation manual's index to locate the specific rules and examples for citing that type of authority.
  6. When your brief is completely finished, save it. I recommend printing out a hard copy. The key is that the brief must be finished. If you construct the table and then go back and do any editing, no matter how minor, it's possible that the pagination will shift, and you will risk throwing all your page references off.
  7. Using the printed pages of your hard copy (which you have now set in the word-processing version of concrete), go from the beginning to the end of the brief, writing the page number for every full citation and short form citation on the corresponding authority’s index card.
  8. When you have written down all the page numbers, group your cards by category according to the custom or court rules that govern in your jurisdiction. For example, in Arkansas, court rules mandate that we group by (a) cases, (b) statutes/rules, (c) books and treatises, and (d) everything else.
  9. Put the cards in alphabetical or numerical order (depending on the nature of the authority) within each category.
    (a)
    For alpha-numeric authorities (e.g., statutes that use both numbers and words), arrange first by word, then by number (Ark. Code Ann. § #-#-### before ## U.S.C. § ####).
    (b)
    For secondary authorities, remember to alphabetize by author's last name (e.g., James Brown before Gordon Sumner). You should end up with a stack of cards in the same order that the authorities will appear in the final table.
  10. Type the information on the cards into your table, following the format prescribed or customarily used for appellate briefs in your jurisdiction.

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Comments

I recognize the difficulty in having students utilize what is a fairly advanced tool in MS Word. So I can understand the attraction of a totally paper-based system like the one above, which, by the way, is set out in great detail. It's my opinion, though, that you are doing your students a great disservice.

Such a system has no place in practice. There is editing all the way up until just before filing. It is difficult to imagine telling an attorney that they need to stop an hour or so early to construct index cards. The time required to prepare the system is time that should be spent perfecting the brief.

I taught my secretary how to run a TOA when she had no word processing skills to speak of. It took, in all, one 20-minute explanatory overview, one time watching another secretary run a TOA, and one time with the other secretary looking over my assistant's shoulder to answer questions, etc. for her first brief filing. Legal writing programs that incorporated some basic legally based word processing instruction would save time and aggravation in practice far beyond the time expenditure required to learn the skill.

Posted by: Molly DiBianca | May 24, 2008 7:04:07 PM

Thanks for your comment. I agree that attorneys in practice--with qualified legal secretaries who know something about wordprocessing--should use the automated system built into their wordprocessing software. And I understand that lawyers keep editing up to the last minute.
But I am not willing to spend class time teaching future lawyers secretarial skills--at least not the amount of time you described that it took to demonstrate the skill to your secretary.
And my students have ample, ample time to prepare their briefs--and to edt and proofread. Most have never constructed any sort of index before, and I therefore do see the value in their learning why a Table of Authorities is such an index.
I respect your differing point of view. There are always trade-offs.

Posted by: Coleen Barger | May 27, 2008 2:30:40 PM

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