Caselaw and citators fall 2011Presentation Transcript
Case Law and Citators Legal Research and Writing Fall 2011
Why Court Opinions? PRIMARY SOURCES
Court Hierarchy Court HierarchyFrom the Bottom Up
Court of original jurisdiction
Court of general jurisdiction
Court of limited jurisdiction
Family court, traffic court, juvenile court
Proper name varies from state to state
Intermediate Appellate Review
Name & Number of levels vary
Court of Last Resort
Supreme Court of [State]
Supreme Court of the United States
See The Bluebook, Table T.1 for a breakdown of courts for each state
Cases: Print Publication Sequence Slip Opinions Distributed by the court; official Increasingly distributed online, official status must be determined by the court rules Put on electronic databases Advance Sheets Preliminary version of a case in a reporter Contain same editorial notes and pagination as bound volume Judge can make changes Reporter Permanent version of decision
Reporters Compilation of court decisions Generally chronological arrangement Can include decisions of: a single court single level of a court system a single state a region of the country (a number of states) a specific legal subject (topical reporters) These are increasingly rare in print ? What makes it into the Reporters?
National Reporter SystemWest Publishing (since 1880s) Publishes “reported” federal and state cases Court rules are increasingly allowing the use of unreported cases—the line is bluring. Provides uniform editorial treatment Synopsis Headnotes Cross referencing material Are NOT part of the case!! No substitute for reading the case! Some are unofficial, although some have been designated as a state’s official reporter
Case headnotes Headnote – a summary of a legal issue discussed in the case Each headnote is assigned at least one specific topic West reporters integrate headnotes and their specific topics with the West digest system (more later!)
Headnote – note summary of specific point of case
How to find cases Reporters tend to be a collection of unrelated cases, so we have to have a finding aid such as: Digests Secondary sources American Law Reports (ALR) Annotated codes Citators – Shepards & Keycite Electronic Databases
Digest A subject arrangement of case summaries Includes an outline or classification of the law or specific area of law Case summaries are organized in the outline, under the specific issue raised in the case
West’s Digest System Most comprehensive print case finding tool An index to all reported court decisions and some “unreported” decisions Only case finding tool for many older state cases not on electronic databases
Structure of Digest Arrangement – topic/key number system Outline of the field of law Divided law into major subjects Each subject divided into topics (400 total) and sub-topics Each sub-topic assigned a key number Cases assigned to specific topic/key number based on the case headnotes
Using the Print Digest 1. Choose digest set Louisiana digest, regional digests*(not all regional reporters have digests), federal digests 2. Dig In! Use case headnote Subject and topical analyses Search Descriptive Word Index Words and Phrases (defines words, but is often limited)
Using the Print Digest “Terms” from case, client meeting, etc. Read a case (headnote) or secondary source Descriptive Word Index (Gives you) Topic & Key Number Go to Volume containing topic and look up Key # Read Topic Outline Read case descriptions and pull and read relevant cases
Updating Print Digests Be sure to check: 1. Main digest volume 2. Pocket part Some pocket parts are so large, the publisher creates a separate bound volume 3. Cumulative supplements for the digest set Small paperback supplements following the last volume in the set (some sets may not have this)
Hypothetical-Louisiana Case Law Digest 2nd Your divorcing client seeks alimony from her husband. She currently resides with her 5 year old daughter from the marriage as well as her stepdaughter who is six years old. Other than taking care of her two minor children and her household, she has no training for any kind of a job and is unemployed. Is she entitled to alimony under Louisiana law? Terms: Alimony; Support; Allowance; Divorce; Nullification of Marriage A) Louisiana Case Digest Second-Descriptive Word Index –look under “A” for Alimony B) You find that it is under Marrriage Key #62 C) Go to Louisiana Case Digest volume which contains “Marriage”-it’s volume 38-on the spine “LisPendens to Master” D) Read case entries, find case on point and update
If you have a case: Select headnote dealing with your legal issue Use the corresponding topic and key number In print, go right to the appropriate volume In Electronic… Westlaw allows you to directly access online digest from case headnote…from there you can create a custom digest…
Westlaw allows you to directly access online digest from case headnote Click here
Choose what jurisdiction you want to find cases in Add additional search terms
List of cases and materials on topic for jurisdiction you selected
Click here for current page Type in search terms to have Westlaw help you find right topic/key number
Select best topic/key number from results list
Lexis “Search by Topic or Headnote” Broad areas of law Drill down to more specific issues If you have a case Lexis headnotes not the same as West headnotes! “More like this” Core terms
Select subject area and drill down
Subjects break down into specific sub-topics. Select your sub-topic.
Select jurisdiction, sources, and further refine your search
“More like this” uses core terms Lexis Headnotes Click Here
“More like this” allows you to search other cases with similar core terms. Can add your own terms.
Citators List subsequent cases, law review articles, statutes, and other secondary sources that refer to an earlier case. Way of tracking how a case has been used subsequently by courts, legislatures or commentators So What?
Uses for Citators Subsequent appellate history of your specific case Subsequent validity of your case (upheld or followed, overruled in full or in part, distinguished) Discussion of your case in subsequent cases Discussion of your case in secondary sources
Shepard’s lays out the subsequent history of the case, providing links to each decision
Westlaw also provides a graphical view of the history of your case
Using Online Citators Lexis – Shepard’s Westlaw – KeyCite Current, no need for updating with additional steps Links to case citations and secondary sources *LSU Law Library no longer has an updating method in print!
Using Online Citators Results can be sorted and narrowed very easily Sort by negative/positive treatment Depth of treatment Jurisdiction Add additional search terms to narrow retrieved cases
How to Shepardize 2 ways to Shepardize Directly from a case From Shepard’s tab on opening Lexis screen with case citation
Shepardize directly from your case.
Shepardize directly from Shepard’s tab Select Shepard’s for Research for more hits – all citing decisions. You can switch between these on results page by clicking between KWIC and FULL.
Either way, you will come to this page showing the citation history for your case. Note the breakdown of treatment.
Shepard’s lists prior and subsequent appellate history and then lists citing decisions. Under citing decisions, highest level of court is listed first, and federal before state courts.
Quick ways to limit Shepard’s display. Top line allows you to go to negative, positive and focus results. Shepard’s summary permits you to go immediately to specific types of treatment.
Focus – very powerful tool to limit Shepard’s display
Many options for limiting display. Types of analysis, focus terms, jurisdictions. Scroll down for more.
How to KeyCite 2 ways to KeyCite: Directly from a case From KeyCite search box on opening Westlaw screen using case citation “Full history” results give direct history of case, but not many citing references “Citing references” results do not give direct history of case, but includes references to all citing cases. *you will often end up looking at both!
Option 1: KeyCite directly from your case. Note you can select “full history” or “citing references”.
Option 2: KeyCite box located on main Westlaw screen on side tab
KeyCite screen comes up. Note that you are brought to “full history” results. This gives you direct case history. To see all citing cases, you must select “citing references” option.
Many more cases referenced, but note that direct history of this case is no longer displayed.
KeyCite Limits Limit results by: Jurisdiction Depth of treatment Search terms Date Headnote (Topic and Key Number) Must be in “citing references” display to use KeyCite limits
Limiting KeyCite display. Must be in “Citing References”.
Ways to limit are located on left hand vertical bar. Locate lets you add additional search terms
KeyCite lets you even look at some foreign jurisdictions