Passim, and its abolition

The word “passim” may become passé.

The United States Supreme Court is acting to abolish the word, which, as far as I know, exists nearly exclusively in the table of authorities of legal briefs. I have a far more sweeping reason for concurring in that move than the Court’s apparent one.

Here’s the situation.

Attorneys, or perhaps more accurately their assistants, put passim in a table of authorities when a case (or other authority) is cited on many pages, as a substitute for listing the number of every page on which the case appears. The word means “throughout,” as it descends from the Latin phrase “sic passim,” which Merriam-Webster translates as “so throughout.”

The common practice is that when a case appears on more than five pages of a brief, an italicized passim is used instead of listing each of the six-or-more page numbers.

The use of passim is generally a matter of convention, rather than court rule. California Rule of Court 8.204 requires a table of authorities but prescribes no specifics. The California Style Manual does not address passim, other than declare it among the terms that should be italicized. Federal Rule of Appellate Procedure 28 requires that cases be “alphabetically arranged,” and that the table contain “references to the pages of the brief on which they are cited,” but is mum as to passim.

For me, until last month, the use of passim never inspired much thought. It’s just one of those conventions that attorney colleagues and I used when filing briefs, like roman numerals in major headings or “respectfully submitted” above the signature block. And when I’ve seen passim in the table of authorities of a brief I’m reading, I just think the brief is replete with references to the case, such that it would not be particularly helpful to list all pages containing it.

But last month, in releasing proposed rule revisions, the Supreme Court added to its Rule 34: “The table of authorities should not use the ‘passim’ notation, but should instead list every page on which an authority is cited.”

When that rule change goes into effect, it will terminate the use of passim in the nation’s highest court. The Court (as far as I know), has given no reason for barring the word. I can only assume that one or more of the Justices have felt hampered when a “passim” prevents readily finding all the discussion of cases that appear on, say, six or seven pages of a brief. Something like that has prompted the Court to move to cancel passim.

Are there other appellate judges who don’t like passim? Would some of my colleagues on the California appellate bench prefer to eliminate the word? Like (I suspect) most lawyers and judges, I don’t care much either way.

But this bears more emphasis: I really don’t care, even though I’m a regular brief reader. And that’s because, as far as I’m concerned now, our state rules could eliminate not just passim but the entire table of authorities. At least since the Covid-19 pandemic, I no longer use the table of authorities at all.

Before oral argument in a recent juvenile dependency appeal, I was interested in seeing how each party’s briefing dealt with our Supreme Court’s recent opinion in In re Caden C., 11 Cal.5th 614 (2021). If I had hard copies of the briefs, I would turn to the table of authorities of each brief and let them guide me to the pages that I wished to read.

But I have not looked at the hard copy of a brief in over two years. Instead, I’ve read hundreds of briefs in PDF form on a laptop or an iPad. I never receive or ask for a hard copy, nor do I ever print out a brief.

So when recently looking for the parties’ approach to Caden C., I simply used the “find” function to search for “Caden” and let that guide me to the portions of each brief that contained references to the Caden C. case. When I do this, I usually find the citation to the case in the table of authorities as one of the references, but I immediately move on from that to the next citation, as I see that as no help. It would be harder to scroll to each page referenced in the table of authorities than it is to simply “find” the references by searching for the case name.

Because an electronic version of a brief is searchable in this manner, I may not have used a table of authorities to find pages in over two years, and I do not expect to do so in the future, at least so long as I’m reading electronic copies. Consequently, California could join the Supreme Court in its passim abolition and it wouldn’t affect me.

Notably, while the table of authorities now feels like an anachronism to me, reading an electronic version does not change everything. I do not have the same view of the table of contents. The table of contents typically is the first thing I look at in a brief, and (if it is helpfully crafted), I often come back to it at various times in working on a case.

The table of contents can provide a reader with an overall view of the litigant’s argument in a case, in much the way that a summary of argument can. Appellate attorneys miss an opportunity to advocate if they fail to craft their headings with an understanding that they will be used by readers to access their brief.

That I am reading a brief electronically does not stop me from using a table of contents. In fact, I still may use that table to find a particular section of a brief, although usually by using “find” to locate the heading by searching for a phrase in it.

But for me, once I have a brief on the computer, the table of authorities has little use. A concern about whether passim is used in that table has to me a deck-chairs-on-the-Titanic feel. What does passim matter, when the table itself doesn’t?

In the California system, there are several hundred justices and research attorneys who form the audience for appellate briefs, and they may not all read them the way I do. Some may read them in print. To the extent more read briefs on screens, however, the table of authorities may be rendered nearly useless. It could become something that exists but doesn’t function, like a body part made useless by evolution. That might make the table of authorities kind of like. . .well. . .an appendix.