Untangling Unreliable Citations
MARGIE ALSBROOK*
ABSTRACT
Citations are the vernacular that the legal profession uses to communicate
the precedents that underline our arguments and analysis. They are the building
blocks of legal communications and legal arguments, and lawyers and judges
need to be able to rely upon the accuracy of each other’s citations to work in a
stabilized democracy. Democratic stability is in jeopardy due to an erosion of
norms from a variety of well-documented sources, most of which are well
beyond the control of the average lawyer. But lawyers and judges can control
the reliability of the authority we use in our own work product, and this Article
urges legal advocates to increase our carefulness in these constantly changing
times.
The idea of verifying the contents of sources before citing them sounds so
simple. However, copying and pasting citations has become an accepted prac-
tice, and citations are becoming increasingly unreliable as a result. This was
true before 2017, when a new citation known as “(cleaned up)” was introduced,
and before 2023, when artificial intelligence technology began to rapidly influ-
ence the way legal professionals approach writing projects. Until these new
developments are stabilized and trustworthy, lawyers must devote even more
time to double-checking sources and citations.
This Article discusses the danger of simply relying upon another lawyer’s
paraphrased language, a danger that escalates as the way we obtain informa-
tion and sources continues to shift. Through an in-depth look at a cautionary
tale from Kansas, this Article illustrates how one judge used two words to cre-
ate the myth of a higher standard for discovery that has been repeatedly—and
incorrectly— applied to opponents of corporations in litigation. Because people
are not checking the original sources for accuracy, Kansas now has a split in
* Assistant Professor, Mercer University School of Law. Special appreciation to all of the colleagues who
gave comments and encouragement during the process of writing and editing this article, including Robert
Brain, Joe Fore, Billie Jo Kaufmann, Ann Killenbeck, Amelia McGowan, Karen Sneddon, and Emily
Zimmerman; also many thanks to all of the faculty who provided thoughts during the “cleaned up” discussion
panel at the 2023 Southeastern Association of Law Schools Conference (SEALS) and the civil procedure dis-
cussion during the Association of Legal Writing Directors (ALWD) Scholars Workshop at the 2022 Western
Legal Writing Conference. Gratitude also goes to the research assistance provided by University of Arkansas
students Caitlin Robb, Jake Stringer and Ellen Womack. Sach Oliver and Ryan Scott of Bailey & Oliver in
Rogers, Arkansas are the dedicated practitioners who brought attention to the increasingly combative nature of
Rule 30(b)(6) depositions. And special additional gratitude to Em Wright who saved the portions of this article
focused on painstaking specificity from being painfully boring. © 2024, Margie Alsbrook.
415
the way it interprets a crucial rule, and that ambiguity could have been avoided
with increased precision.
Until technology stabilizes, rules are updated, and norms are restored, this
Article pleads for increased prudence when it comes to citation practices. It
also promotes a return to simplicity: writers should actually read the case they
are citing, and the case being cited there, and down the line. In addition to
increasing the reliability of citations, this “back to the basics” approach also
has the potential to increase the trust lawyers and judges have in each other
and their work. And if the legal profession can restore some of the faith we
have in each other, then perhaps some of the faith the public has lost in our pro-
fession and our courts might be restored as well.
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
.........................................
..............................
416
II. (CLEANED UP) CITATIONS ARE A MESSY WARNING TO THE
UNWARY 418
III. AN IN-DEPTH EXAMPLE FROM MODERN PRACTICE: THE
MYTH THAT FRCP 30(B)(6) REQUIRES “PAINSTAKING
SPECIFICITY”. . . . . . . 429
A. BRIEF OVERVIEW OF FRCP 30(B)(6). . . . . . . . . . . . . . . . . . 432
B. HOW ONE KANSAS JUDGE USED TWO WORDS TO CREATE
A MYTH 440
IV. A PLEA FOR SANITY AND WARNINGS FOR THE FUTURE. . . . . .
......................................
445
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
I. INTRODUCTION
Even before the recent avalanche of artificial-intelligence-based legal products,
the modern American justice system was arguably being destabilized by the ero-
sion and dilution of precedent.
1
See, e.g., With Roe overturned, Legal precedent moves to centerstage, ABA (June 24, 2022), https://
www.americanbar.org/news/abanews/aba-news-archives/2022/06/stare-decisis-takes-centerstage [https://
perma.cc/JY2X-KJHZ]; see also Daniel B. Rice & Jack Boeglin, Confining Cases to Their Facts, 105 VA. L.
REV. 865 (2019) (analyzing the potential threat to stare decisis when courts confine cases to their facts, and
how this practice emboldens judges to disregard precedent).
The unreliability in the citations we use to help
our legal system rely upon that eroded and diluted precedent. The United States
1.
416 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 37:415
Supreme Court decisions in Dobbs v. Jackson Women’s Health Organization
2
and Shelby County v. Holder
3
may get extensive coverage, but they are not the
only recent examples of appellate opinions disrupting long-held precedent,
4
often
while using negligent or misleading citations. Sometimes these opinions are bur-
ied in the tyranny of minutia of the modern information age or ignored because
they are too complicated for the average reader (or reporter) to quickly under-
stand.
5
But these often-overlooked examples can have large consequences in peo-
ple’s lives while simultaneously unraveling citizens’ faith in the American justice
system. Thus, the devil’s work of killing our democracy is done in the darkness
of inattention, often through an avalanche of tiny details.
This Article examines the increasing unreliability of citations in three parts,
through the lens of three separate trends. All three of these trends have their own
impact on the increasing distrust that members of the legal profession have in
each other’s citations and legal writing as a whole and thus contribute to the cur-
rent distrust the public has in our legal system. Part I examines the rise in the use
of “(cleaned up)” citations, a new citation form that began on social media and is
now widely used by courts around the country in ways that go beyond the original
proposal and intended impact. Part II looks at the way that judicial and practi-
tioner negligence related to citing precedent can have a real impact on litigation,
litigant’s rights, and the application of the rules of civil procedure. Part III looks
at unreliable citations through the intersection of the rise of artificial intelligence
sources for legal research and the decrease in the availability of databases to prac-
titioners. All three of these issues contribute to the decrease in reliability of cita-
tions in their own ways, and to the quagmire of issues that result. In this way,
seemingly small citation issues create larger problems for the legal system and
society as a whole, contributing to the exhausting tyranny of minutia that is mod-
ern life.
This Article also promotes a relatively primitive solution for increasing reli-
ability in this age of unease and uncertainty: read the case your opponent is citing
2. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022); see also Nina Varsava, Precedent,
Reliance and Dobbs, 136 HARV. L. REV. 1845, 1907 (2023) (joining the chorus of legal commentary on the
United States Supreme Court’s decision to ignore precedent in forming this famous majority opinion, which
removed the right to certain medical procedures from American citizens).
3. Shelby Cnty. v. Holder, 570 U.S. 529 (2013); see also Christopher S. Elmendorf & Douglas M. Spencer,
Administering Section 2 of the Voting Rights Act After Shelby County, 115 C
OLUM. L. REV. 2143, 2149–50
(2015) (adding to the multiple concerns from legal commentators that the majority opinion in this case will
make it easier for states to dilute American citizens’ right to vote in elections).
4. See, e.g., Richard M. Re, Personal Precedent at the Supreme Court, 136 HARV. L. REV. 824, 825 (2023)
(exploring the tendency of Supreme Court justices to place personal beliefs over judicial precedent, especially
in cases with wide-spread societal implications).
5. See generally Neil Weinstock Netanel, Mandating Digital Platform Support for Quality Journalism, 34
HARV. J. L. & TECH. 473, 482 (2021) (detailing the financial reasons why detailed journalism has declined dra-
matically in the past three decades even as many people get their news from Internet platforms because “[t]he
platforms’ overriding incentive is to keep their users engaged on the platform as long as possible in order to sell
more micro-targeted advertising .. . not from presenting informative, quality journalism”).
2024] UNTANGLING UNRELIABLE CITATIONS 417
