Issues to Watch

Keep Your Clients Close but The Bluebook Closer: Maryland Federal Judge Threatens to Dismiss Pleadings over Failure to Comply with The Bluebook


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Allyson Blazey*

On August 23, 2016, United States District Court Judge James Bredar issued a memorandum that made it clear that Maryland’s attorneys may need to read The Bluebook more closely. North Valley GI Med. Grp. v. Prudential Invs., Civ. No. JKB-15-3268, 2016 WL 4447037, at *1 (D. Md. Aug. 23, 2016). Prior to making his ruling on a defendant’s motion to dismiss, Justice Bredar warned practitioners that non-compliance with The Bluebook and local court rules would cause their clients’ cases to be tossed out of court before even reaching their merits. Id. While this may seem to be a miniscule error on the attorney’s part, Maryland is not the first state to draw attention to the importance of compliance with The Bluebook. See In Re Shepperson, 674 A.2d 1273, 1274 (1996) (suspending a Vermont attorney for filing briefs that “contained numerous citation errors that made identification of the cases difficult, cit[ing] cases for irrelevant or incomprehensible reasons, [and] ma[king] legal arguments without citation to authority”).

I. Follow the Rules or Get out of Court: North Valley GI Medical Group v. Prudential Investments.

In North Valley GI Medical Group v. Prudential Investments, North Valley brought a claim against the defendant under Section 36(b) of the Investment Company Act of 1940. 2016 WL 4447037, at *7. Under this law, an “investment adviser of a registered investment company . . . ha[s] a fiduciary duty with respect to the receipt of compensation for services, or of payments of a material nature . . . .” Id. The plaintiff alleged that Prudential Investment breached its fiduciary duty as the investment advisor of North Valley’s security, and therefore plaintiff was entitled to damages. Id. In response, the defendant filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the basis that North Valley had failed to state a proper claim for which relief could be granted. Id.

While the defendant made numerous legal arguments, Judge Bredar was more concerned with both attorneys’ citation compliance. Id. Before addressing the merits of the claim, Judge Bredar “caution[ed] both parties to observe certain rules as to the format of motion papers.” Id. at *1. He stated that the parties “employed a method of citation of authorities that [was] not only incompatible with the rules, but also [was] a hindrance to the Court’s consideration of the parties’ respective arguments.” Id. The decision went on to cite and include the local court rules and The Bluebook. Id. The judge stated that for documents filed in the District Court, The Bluebook “neither permit nor require[ed] the citation of authorities in footnotes, as opposed to incorporating them into the text of the documents” under Rule 1.1 of The Bluebook. Id. In addition, he stated that under the local court rules, the requirement of attaching “unpublished case opinions ha[d] been omitted” and that including “a citation to either Westlaw or LEXIS [would] suffice[].” Id. Finally, he warned the parties by stating that “[f]uture noncompliant filings will be stricken without prior notice.” Id.

II. The Footnote Warning: The American Bar Association’s Opinion

On September 1, 2016, the American Bar Association (ABA) published an article that centered on Judge Bredar’s decision. Debra Cassens Weiss, Federal Judge Issues Footnote Warning, Threatens to Toss Pleadings Using Wrong Format, ABA J. (Sep. 1, 2016, 8:00 AM), http://www.abajournal.com/news/article/federal_judge_issues_footnote_warning_threatens_to_toss_pleadings_using_wro. In this article, Weiss discussed the tension between judges’ and legal writing scholars’ opinions on legal briefs with in-text versus footnote citations. Id.

While The Bluebook states that “citations in briefs generally should appear in the text absent local court rules to the contrary,” legal writing scholars have begun to push for a change in the local courts. Id. Attorneys and writing scholars alike argue that in-text citations are distracting and take away from the validity of the lawyer’s argument. Id. Bryan Garner, the president of LawProse and a columnist for the ABA Journal, stated that in-text citations “amount to useless details that distracts the reader from the content.” Id. However, he admitted that he understood the court’s rationale as some lawyers “‘abuse’ footnotes ‘to get around page limits.’” Id.

III. In Re Shepperson: Vermont’s Emphasis on Proper Citations

While Maryland is cracking down on its attorneys’ citation skills, it is not the first state to instill such a practice. See In Re Shepperson, 674 A.2d 1273, 1274 (1996). For example, Vermont judges have reprimanded the legal community for briefs filed with the courts that had improper citations. Id. The Supreme Court of Vermont suspended an attorney who continuously filed “inadequate and incomprehensible legal briefs” over a seven-year period. Id. On appeal, Shepperson appealed from the Professional Conduct Board who had recommended that he be disbarred based upon inadequate filings. Id. During 1985 to 1992, Shepperson filed briefs that contained numerous citation errors. Id. The board stated that the citations in his briefs were so incorrect that they made “identification of the cases difficult.” Id. In addition, he “cited cases for irrelevant or incomprehensible reasons” and “made legal arguments without citation to authority.” Id. He even failed to “cite to a single authority” in his brief that he filed for his appeal with the Supreme Court of Vermont. Id. While Shepperson tried to argue that the rule was in violation of his freedom of speech under the First Amendment, the court ruled that this was not an adequate justification as he could not be “permitted to represent others in a manner that, under reasonable and accepted standards, fail[ed] to safeguard his clients’ interests.” Id. In conclusion, the court chose to suspend him indefinitely (but for no less than six months) until the attorney could demonstrate that he was “fit to practice law.” Id. at 1275.

IV. What’s Next for Maryland?

While legal scholars and attorneys may see Bluebook Rule 1.1 as “useless details” that distract judges from their arguments, choosing to ignore the rules may cause their clients’ cases to be dismissed from court. See Weiss, supra. Judge Bredar, like the judges on the Supreme Court of Vermont, has deemed citations a crucial part of the attorney’s brief that cannot simply be ignored. North Valley GI Med. Grp. v. Prudential Invs., Civ. No. JKB-15-3268, 2016 WL 4447037, at *1 (D. Md. Aug. 23, 2016); see In Re Shepperson, 674 A.2d at 1274. Due to this warning, it is possible that Maryland may see a movement in the legal community for change in the local court rules governing citations.

*Allyson Blazey is a second-year law student at the University of Baltimore School of Law, where she is a staff editor for Law Review. During the 2016-2017 school year, she spent twelve weeks clerking for the Office of the Special Inspector General for the Troubled Asset Relief Program and currently works at the U.S MINT in Washington, D.C. For the summer of 2017, Allyson will join Semmes, Bowen, & Semmes as a Summer Associate.

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