[The version of this letter sent this morning was corrupted.
I do not know what went wrong. Hopefully this version
will be cleaner]
To: Bob Berring
We have communicated a number of times this week off the
list concerning your 1992 letter to Congressman Hughes of
the House Judiciary Committee concerning citation
requirement in state and federal court rules. On Sunday,
you said that you were on sabbatical and would not be able
to look at your papers until Wednesday and you asked that I
give you an opportunity to review those papers. Yesterday,
I sent another message to you, but you have not responded.
This is Thursday.
I had pointed out to you that your letter:
Ignored the rules of thirty-one states including all of
the largest states, because you had ignored the
requirements in states with official reporters.
Ignored the Individual Rules and Practices of the eight
hundred or more federal district court judges.
Miscounted in a material manner the number of federal
district courts with specific rules requiring West
citations.
I provided to you an excerpt that appears in the Hearing
transcript published by the Committee (available to all
librarians on this list who are at depository libraries, I
assume -- H.R. 4426, May 15,1992, Serial No. 105, ISBN 0-16-
040799-0.)
MR. FRANK
Would the gentleman [Mr. Ramstad?] yield. I want to be
very precise because this is, to me, an important
point. You said there are only
[page 163]
three States, one district court, and one circuit that
require "and take seriously" -- are there some that
require and don't take seriously? I don't mean to be
picky, but ---
MR. BERRING
No -- well, there are some that --
MR FRANK
Let's forget "take seriously." Let's talk about require
or have a rule.
MR. BERRING
Just the ones I know of.
MR. FRANK
Would you submit a list of those?
MR. BERRING
I'd be happy to.
I indicated to you that in my view your letter was not
responsive to Representative Frank's challenge to your claim
of only "three states, one district court, and one circuit"
because you chose to ignore states with official reporters.
Your letter has become an issue soley and only because it is
being featured prominently in the West public
relations/lobbying campaign, although West is well aware of
its deficiencies. For example, it was used by West at its
National Press Club press conference on October 19, 1994 and
was most recently posted on this list this week by Dorothy
Molstad, a top executive at West Publishing Company, who
runs their public relations. Yesterday, I received a
telephone call from a reporter of Forbes magazine who had
obtained a copy of your letter from West. In addition, your
letter was mentioned to me by investigators of the United
States Department of Justice Antitrust Division among
others. In all instances, the recipients had received the
letter from West.
The letter was also referred to by the attorney-lobbyists
for West at the October 19, 1994 TAP meeting, as proving
that few courts require West citations. No other authority
was provided by West. Indeed, your letter appears to be
Exhibit A with no other exhibits in the West lobbying/public
relations campaign. Had it not been for West, no doubt your
letter would have settled into obscurity.
At the TAP meeting, I challenged the West assertion on two
grounds: one, that the letter was limited in scope and
further that you prepared the letter as a consultant to
West. James Schatz, counsel for West emphatically said that
it was not prepared by you as a consultant for West. I will
deal with that issue last, but note, I was then attacked
publicly by a librarian from Minnesota for having besmirched
the reputation of a prominent law professor. I doubt very
much whether that librarian had read the transcript of the
hearing or focused on the substance of your letter.
In any event, I have sent to you on Sunday my analysis of
your letter. On Tuesday I sent you a draft of my letter to
Congressman Hughes. I have asked you whether you wish to
correct my analysis and whether you wish to comment on the
use of your letter by West. I would still wish to wait for
your comments, if you wish to provide any, before delivering
that letter and posting it on the list.
In the meantime, I would like to explain why I considered
you to have written this as a consultant for West. First,
the Hearing transcript identifies you as a consultant for
West, and such description was not challenged by Vance
Opperman, immediately after it was made:
[page 113]
MR. FRANK:
We will take our final panel today: Mr. Vance Opperman,
who is a partner in the law firm of Opperman, Heins &
Paquin, and he's the lead counsel in West v. Mead. He
has been counsel to West
[page 114]
for 20 years or more. Accompanying Mr. Opperman will
be Ms. Donna Bergsgaard, who is the manager of West
Reporters & Digests section, and Robert Berring, who is
a consult (sic) to West and is the law librarian and
professor of law. They are our last panel. Oh I am
sorry, it's not the last panel.
All right, please go< Mr. Opperman, go ahead.
* * *
MR. OPPERMAN
Thank you, Mr. Frank. I have been properly identified.
I realize my full statement is in the record.
Second, I was at the hearing in May 1992. I personally paid
for my own expenses for travel and lodging to attend the
hearing. I seemed to recall some discussion concerning the
Subcommittee refusing to let you testify because it
considered you a consultant for West. Third, you had
testified as an expert witness for West at the 1988 West v.
Mead trial. Fourth, the letter itself was incomplete in a
way that favored the West position. So, it was reasonable
for me to view the letter as being done by you as a
consultant for West. If you wish, you can explain to the
list why the Subcommittee refused to let you testify at the
hearing. In addition, you have yet to answer my question as
to whether your letter was reviewed by West prior to your
submission of the letter to the Subcommittee.
Everything stated above was previously provided to you this
week. In any event, if you have any comments as to the
accuracy of this message or the letter that I drafted to
send to Congressman Hughes, and which I have sent to you,
please let me know.
As you know, I have attempted, without success, to permit
you to clarify the letter and the circumstances surrounding
it. I know that you are extremely popular among law
libarians. Indeed, it is my view that West believes that
any challenge to your letter will backfire because you are
so well liked, and, in my view, Dorothy Molstad posted your
letter on this list this week with the intent of forcing
someone to attack you. But, the issues are too important,
and West, which without a doubt knows the deficiencies of
your letter, has made your letter too central to its
argument to ignore it. Frankly, I am surprised that West
has pulled your letter from obscurity because they
undoubedly knew that it would be challenged, and, I wonder
if they considered the personal consequences.
Alan Sugarman
HyperLaw
sugarman@panix.com
212-873-1371
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