Online Citators 2005 Basic Legal Skills

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  • [Optional: bring Shepard’s bound volumes and cumulative supplements] Greeting. Introduce yourself. In today’s class, we’ll be talking about updating our research, the last step in the legal research process. The updating tool that we use is called a citator.
  • Here is the agenda for our class today: (see slide). We know that you’ve had Westlaw training this week and Lexis training will follow next week. Both Lexis and Westlaw training sessions include their citators, but they may spend the time showing you the bells and the whistles, and not covering background information such as what a citator is and how you make it a useful tool in your research. That’s why we’re doing this session today.
  • A citator is a tool that shows when and how a particular legal resource has been cited. It gives you quantitative information (the number of citing references) and qualitative information (the kind of treatment a particular legal resource has received). Citators, or citation services, exist in other disciplines, too (e.g., Social Sciences Citation Index ), but they are indispensable in the legal field because our legal system is based on the doctrine of precedent, a principle that similar fact situations should result in similar legal outcomes. Therefore, a prior decision, on point, from the applicable jurisdiction, must be followed if it's still "good" law. And because citators tell us what has happened to a case, statute, or regulation after it was released, they help us determine if the authorities that we cite to, or rely upon, continue to be "good" law. Some people think of citators only in connection with updating case law, but citators are used to update statutes, regulations, and secondary sources, too. A CASE can be: Reversed by a higher court; Overruled at a later date; Superseded by a statute; Criticized without being overruled; or Cited favorably by other courts, thereby strengthening its authority. A STATUTE can be: Repealed, Amended, Renumbered, Subject to pending legislation, Declared unconstitutional, or Preempted by federal law. Citators can also be used as a finding tool early in your research, not just as an updating tool. But right now, I want to give you a brief history of online citators, Shepard’s and KeyCite. I think it's important to have this background knowledge because for over a hundred years, until the late 1990's, there was only one way to update, and only in print. This summer and after graduation, you will work with attorneys who first learned to use Shepard’s Citations in print, and if they make a reference to Shepard’s gold, red, and blue cumulative supplements, you’ll want to have some idea of what they’re referring to. Also, if you ever find yourself working at a place where you don’t have access to online citators, maybe in a nonprofit or a small law office, you may have to use print Shepard’s. And thirdly, some specialized topical Shepard’s Citations are not included in the online citators. Print Shepard’s will be at least one month out of date, even with the latest cumulative supplements. Therefore, you really do want to use online citators, if at all possible. Your local county law library may offer free access to online citators as KCLL does for walk-in patrons. GLL offers free access to KeyCite for walk-in patrons.
  • Before late 1990's, there was only one comprehensive legal citation service called Shepard's Citations . And learning to use Shepard's Citations in print was one of the rites of passage in law schools. Using Shepard's Citations to update and verify legal authority became so established that Shepard's became a verb and lawyers commonly referred to the process as Shepardizing . [Optional: pass around print volumes of Shepard’s] Shepard's Citations include citation services for cases, constitutions, statutes, administrative rules and regulations, court rules, law review articles, restatements, and individual patents. Citation services exist by jurisdiction (e.g., Shepard's Federal Citations , Shepard's Texas Citations ), by reporter (e.g., Pacific Reporter Citations ), by type of authority (e.g., Shepard's Rules Citations , Shepard's Law Review Citations ), and by topical areas (e.g., Shepard's Bankruptcy Citations ). Once you learn how to use one Shepard's citation service, it is easy to use other Shepard's because the organization, format, and the notation system are the same. The only drawback to shepardizing in print is that it’s very time-consuming. In mid-1990’s, Shepard's became available online. The online version was much easier to use than print because you can shepardize all types of legal authorities through one interface, whereas in print, you likely had to consult multiple Shepard’s titles. The online Shepard’s was also more up-to-date than print. The online Shepard’s was available on both Lexis and Westlaw until in 1997, Reed Elsevier, a Dutch publishing conglomerate which owns Lexis, bought Shepard’s. In order to compete with Lexis which now offered Shepard's exclusively, Westlaw introduced KeyCite in 1997. So now, there are two major competing online citators, Shepard’s on Lexis and KeyCite on Westlaw.
  • With the online citators, Shepard’s and KeyCite, you can… 1. See the DIRECT HISTORY of your legal authority: For cases, this means seeing prior and subsequent history of a case (Was your case appealed? Was it affirmed, reversed, or remanded?). For statutes, citators show reversals, amendments, or pending legislation that affects your statute. 2. See the INDIRECT HISTORY (also called CITING REFERENCES) for your legal authority: This is a list of other cases and secondary sources that cite your legal authority. This information is useful for two reasons: (1) It tells you if a later case has overruled, criticized, or distinguished your case. It a later case overruled your case, then you can’t rely on your case. If a later case criticized or distinguished your case, then you need to analyze that later case and determine to what extent you can rely on your case and what weight it will carry. (2) If you have a legal authority that is useful, other cases and secondary sources that cite your legal authority may also be useful. 3. Find PARALLEL CITATIONS If you have a citation and need a to get a parallel citation, say to an official or an unofficial reporter, a citator is a quick way to get that information. Now, let’s take a look at Shepard’s and KeyCite, in that order, and see how powerfully they can help you with research.
  • The example that I want to use to demonstrate Shepard’s and KeyCite is the Kelo case. Kelo is one of the three property rights cases before the U.S. Supreme Court this term which could make this the most important term for property rights in twenty years. The court will hear oral arguments on Kelo later this month. At issue in all three property rights cases is whether the federal, state, or local government has “taken” private property in violation of the Fifth Amendment which prohibits government from taking private property for public use without paying just compensation. These cases present an opportunity for the Court to shape and determine the limits in the takings clause which, in recent years, the lower courts have largely interpreted to give carte blanche to government takings. I chose Kelo because I think it’s the most interesting of the three property rights cases. In 1998, the New London city council in Connecticut approved a development plan for an area called Fort Trumbull that would complement a new research facility to be built by Pfizer. The city estimated that the development will create new jobs and bring in $1.2 million dollars in property tax revenue. Susette Kelo owned 15 homes located in the development plan. She and other homeowners challenged, in state court, condemnation actions filed by the development corporation and lost. On appeal, the homeowners are arguing that “public use” traditionally means a road or a public building, not “public” benefits, such as taxes and jobs that may flow from private business. The city is arguing that economic revitalization is a natural outgrowth of the public use principle found in two precedents, Berman and Midkiff (which gave deference to legislative judgments on public use) and that the homeowners’ position will lead to a devastating impact on the ability of cities to revitalize economies.
  • So in Kelo , the Supreme Court will examine two old precedents, Berman and Midkiff , which both parties cite in their briefs, and determine whether the government’s use of eminent domain for private economic development is a “public use” under the Fifth Amendment. [Berman v. Parker, 348 U.S. 26 (1954) – upheld the taking of private property for transfer to a private development corporation as part of an urban renewal plan.] [Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) – upheld a taking of private property for redistribution in order to reduce the concentration of land ownership in Hawaii.] So let’s update Berman on Shepard’s first and then on KeyCite, and see its validity.
  • If you sign on to Lexis, this is the screen that you’ll see. Click on the Shepard’s tab.
  • Type the citation to the Berman case, 348 U.S. 26, the case that you want to shepardize.
  • (Each click will highlight different arrows). You see that there are 1424 citations to Berman since it was decided. (2) At the top center (and 2 other places), you’ll find the Shepard’s signal for this case, here a yellow triangular caution sign. (3) The Summary appears in the gray box and gives you a quick summary of the entire Shepard’s report. (4) The Summary includes the editorial phrases (Criticized, Distinguished, Followed) that appear in this Shepard’s report. The phrases in bold type are the analyses that generated the Shepard’s signal. (5) The Summary also indicates if there are prior or subsequent appellate history for this case. In Shepard’s, the citing references are numbered. The report is organized by jurisdiction and court, then sorted by date (most recent first). Let’s click on the editorial phrase “Distinguished” in the Summary box.
  • Clicking on the editorial phrase “Distinguished” takes us to the first citing reference that distinguished its case from our Berman case. To move to subsequent occurrences of the phrase “Distinguished” in the Shepard’s report, use the navigation bar located on the lower right corner of the screen (the Next Citing Reference arrow).
  • The drop-list in the navigation bar (located on the bottom of the screen) lets you jump to particular editorial phrases or jurisdictions in the Shepard’s report. The drop-list shows the number of occurrences for each editorial phrase or jurisdiction. You can also use the drop-list to jump to annotated statutes or secondary sources.
  • If you want to see all the Shepard’s signals and what they signify, click on the Legend link at the bottom right of your screen. This will open up a dialog box. The red stop sign signals a strong negative treatment of your case. The yellow triangle signals a possible negative treatment of your case. There are other symbols, but I only want to mention one more, a letter Q, which Lexis added just a few weeks ago. The orange-colored Q stands for “Questioned by” and it signals questioning of the “continuing validity or precedential value of the case you’re shepardizing because of intervening circumstances, including judicial or legislative overruling.” These graphic symbols or signals exist to make using a citator easier, but you really have to be cautious about relying solely on them. And this applies to KeyCite, too. For example, the yellow triangle signals “caution - possible negative treatment of your case,” but you will have to examine the citing case for yourself to determine which point of law was criticized or distinguished.
  • So far, we’ve looked at the Summary box and the navigation bar. Now, let’s look at the display options. You can customize the display to show only the information that you want to see. And that makes sense with a case like this that has over a thousand citing references. (Each click highlights different arrows). Click on Display Options (top left corner of the screen). From here, you can… Select to show or hide pinpoint page references by selecting or deselecting. Select to show or hide citing reference signals (the graphic symbols) of the cases that cite your case. Select to show or hide headnote numbers (Lexis headnotes are different from Westlaw headnotes). You can also reduce the number of citing references by clicking on… Hide Summary Hide Prior History Hide Subsequent Appellate History (out of the screen shot) links.
  • You can also switch the display between KWIC (Key Words In Context) and Full report views. KWIC view – displays subsequent history and citing references that have analysis. FULL view – displays prior and subsequent history, and all citing references.
  • If the Shepard’s report is too large for you to navigate efficiently, you will want to filter the results to a more manageable size. Take a look at the menu on the top center of the screen: Unrestricted, All Neg, All Pos, Custom, FOCUS. Clicking on the All Neg link will display only those references with a negative analysis. (Click on the Unrestricted link to return to the original Shepard’s report display.) Let’s click on the Custom link.
  • The Custom link brings you to a form where you can filter by type of editorial analysis (Negative, Positive, or Other such as Concurring or Dissenting Opinion), by jurisdiction, headnotes, or date.
  • Remember that Lexis headnotes are different from West headnotes. So here on the second half of the previous screen, you see that there are headnotes listed for both Lawyer’s Edition (Lexis publication) and Supreme Court Reporter (West publication). Restricting the Shepard’s results by headnote will display only those cases that cite your case for the particular point of law addressed within that headnote of your case. When you’re done, click on Show Restrictions button.
  • FOCUS is the last display option that I’m going to show you. Click on the FOCUS link.
  • FOCUS lets you filter the Shepard’s results to citing documents that contain your search terms. Type in the search terms (works similar to Terms and Connectors search) and click on the Focus button...
  • Lastly, if you don’t to filter the display every time you shepardize and would rather set the default settings so that the Shepard’s reports will always display a certain way, click on Preferences (top right of the screen). Notice that the Shepard’s tab is selected so that you’re specifying the default display settings for Shepard’s reports only. I have mine set up to display everything because I initially like to see everything. That way, depending on the number of citing references I see, I can filter the results to display only what I want to see.
  • Citation for Berman : 348 U.S. 26 Ask them to try restricting the Shepard’s results by each of these criteria. How many citing references did they get with each restriction? Jurisdiction (92 citing documents) FOCUS by redevelop! /p blight (154 citing documents) Headnote 9 (18 citing documents) From year 2000 (203 citing documents) Next, let’s KeyCite Berman and see how that citator works.
  • When you sign on to Westlaw, you should see this screen. You can get to KeyCite by typing a citation in the “KeyCite this citation” text box in the left frame, or by clicking on the KeyCite link at the top menu. Then type in 348 U.S. 26 for the Berman case.
  • KeyCite automatically opens, by default, to the History portion. Take a look at the Direct History of this case. Direct History shows the full litigation history as the case moved through the appeals process. In this case, it moved from a federal district court straight to the U.S. Supreme Court. That’s unusual, but if you click on the district court decision, you’ll see that the opinion was written by a D.C. Circuit Court judge. Negative Indirect History lists cases outside the direct appellate line of your case that may have a negative impact on the validity of your case. Again, don’t rely solely on the yellow flags because it won’t tell you whether a case listed here is so strong that it invalidates your case, or is going to have little effect on your case because it is such a mild disagreement or it is from outside your jurisdiction.
  • Let’s talk about the graphic symbols for KeyCite. Red flag – your case is no longer good law for at least one of the points of law it contains. Yellow flag – your case has some negative history, but hasn’t been reversed or overruled. Blue H – your case has some history. Green C – your case has citing references, but no direct history or negative indirect history. A Red flag in the Direct History of a case means that the case has been Reversed by a higher court, Vacated by a higher court, or Remanded by a higher court to a lower court for reconsideration. A Red flag in the Negative Indirect History of a case means that the case has been Overruled by another court at the same level in the same jurisdiction, or Superseded by a statute as stated in the case. A Yellow flag means another case in the Negative Indirect History of the case Disagrees without overruling; has factual Distinctions; although negative, is from another Jurisdiction; or in some other way expresses Dissatisfaction with the case without invalidating the case. If you want to see a legend of all the graphic symbols, click on the word KeyCite. And once again, I want to remind you not to rely on these graphic symbols alone. You should examine the citing cases to determine which point of law was overruled, criticized, or distinguished.
  • After looking at the History portion, click on the Citing References link. KeyCite gives us 2165 citing references for Berman. How many citing references did Shepard’s have for this case? 1424. I would check to see if the difference in the numbers have to do with KeyCite giving more citing references from secondary sources or if Westlaw editors were just more inclusive than Lexis editors and included every single case that happened to mention our case. From Shepard’s demonstration, you now know that citing references lists other cases and secondary sources that cite to your case. Citing references can be positive or negative, so they can strengthen or weaken your case. KeyCite lists citing references in this order: by Treatment and then by depth of analysis. Green stars (depth of treatment stars) helps you to determine how extensively you case is discussed in a citing case (Examined, Discussed, Cited, Mentioned). Quotation mark indicates that some language from your case is quoted word for word in the citing case. HN followed by one or more number indicates the number(s) of the headnote(s) discussing the legal issue(s) for which your case was cited. So on the screen here where the arrow is, this case discusses the Berman case for the points of law discussed in headnotes 5 and 13 in the Berman case. Plus symbol indicates that the case cites the Berman case multiple times.
  • When a case has a large number of citing references, as here, you can limit the results by using the Limit feature. Click on Limit KeyCite Display button.
  • You can limit by Headnotes, Locate, Jurisdiction, Date, Document type, and Depth of Treatment. Limiting by Headnotes will be selected as a default. Check off the box(es) for the headnotes you want to limit by. Click on Apply button.
  • You can also choose to limit the citing results by the Locate feature. This lets you limit by specifying the terms that must appear in the text of the citing documents (similar to the FOCUS restriction on Shepard’s). The Locate limit works similar to a Terms & Connectors search.
  • KeyCite Notes: (optional if time allows) It creates a Citing References list from within a case. In other words, it lets you locate documents that cite your case for a legal issue found in a specific headnote. How is this different from limiting a KeyCite report by a specific headnote? There is no difference. Then why is this available? It saves time (If you’re looking at a full-text opinion of a case, you can see citing references that cite that case for a particular headnote without having to first click on the Citing References link and then limiting by a headnote) and possibly saves money, depending on your pricing plan with Westlaw. KC Notes (KC notebook icon) appear next to the headnotes and places in the opinion where the court discusses the point of law found in that headnote. Once you click on the KC Notes icon next to a headnote (in this case, HN 2)… you can get a list of documents that cite both your case (Berman) and the specific headnote you are researching (HN 2).
  • You can select the types of documents (the number of documents available for each type of documents appear in parenthesis) that cite your case and the specific headnote. Notice the headnote you selected is shown below as a reference.
  • I’m choosing to see only cases. If you open up the case menu, you can specify federal or state cases.
  • So, for example, from within a case such as Berman , you have created a citing references list that shows the cases that have cited Berman for the point of law discussed in a particular headnote, HN 2, of Berman .
  • KeyCite Alert: (optional if time allows) Is an alerting service that automatically monitors the status of cases, statutes, federal regulations, federal administrative decisions that you choose and sends updates to you when there has been a change that might affect the validity of these legal authorities. Results can be sent to a printer, fax machine, email address, or a wireless device. This is a handy service to use to ensure that, in the time since you last verified a legal authority, there hasn’t been any changes in the law that might affect its validity. Click on the Monitor with KeyCite Alert link.
  • It opens up a wizard which takes you through step-by-step to set this up.
  • You can click on the “More” drop-down menu on top right of the screen to view all the KeyCite Alerts you have set up.
  • Lastly, TOA (Table of Authorities) gives you a list of cases that are cited in your case. If your case does not have a red or a yellow flag, but the cases that are cited by your case have flags, you should investigate to make sure that your case did not rely on those flagged cases for its holding. The blue page number hyperlinks provide links to where that case is first cited in your case. The plus symbol appearing after the page numbers indicates that the case is cited multiple times in your case.
  • Selecting 3-4 cases to read first: Can limit by jurisdiction – mandatory precendent (NJ state cases). Can limit by editorial analysis – (Negative cases, Positive cases, Followed, Explained, Distinguished…) Can limit by depth of treatment – (KeyCite: number of stars) Cases discussing pyramid systems: Shepard’s FOCUS – search for word “pyramid” KeyCite limit by Locate – search for word “pyramid” Fraud not requiring victim to be in fact misled or deceived: Lexis HN 1 West HN 2
  • Remember that you should use citators for updating or researching statutes, regulations, and secondary sources, too. For statutes… Looking at the History portion helps you determine whether the statute is good law. The History typically includes updating documents (such as recently passed public laws), pending legislation that may affect the statute, and historical and statutory notes that describe the legislative changes that affected the statute. Citing References lists cases, pending legislation, and secondary sources that discuss or interpret the statute. The red graphic symbol generally indicates that the statute was recently amended, repealed, ruled unconstitutional, or otherwise preempted. The yellow graphic symbol generally indicates that there is pending legislation, the statute has been renumbered or transferred, or its validity is otherwise called into doubt.
  • Here is an example of a KeyCite report for a USC section. We are looking at the History portion. You see that there are both red and yellow flags here because this section was both repealed and there are pending legislation that can affect this statute. The citator provides hyperlinks to both the public law that repealed this section and Congressional bills that are pending. But notice that the pending legislation is from the 108 th Congress. We’re now in the 109 th Congress which covers the two years, 2005-2006. I have tried KeyCite with several recently amended USC sections and found it to be not as current or up-to-date as for case law.
  • Now, we are looking at the Citing References for this USC section. Currently there is only one law review article that cites this statute.

Transcript

  • 1. Online Citators 2005 Basic Legal Skills
  • 2. Agenda
    • What is a citator?
    • How to use a citator?
    • Citators for cases
        • Demonstrations of Shepard’s and KeyCite
        • In-class exercise
    • Citators for statutes, regulations, secondary sources
    • Currentness of citators
    • Conclusion
  • 3. What Is a Citator?
    • A citator is a tool that shows when and how a particular legal resource has been cited.
    • It gives you quantitative information (the number of citing references) and qualitative information (the kind of treatment a particular legal resource has received).
      • 1. For validation : to determine that a case, statute, regulation, or administrative decision is still good law and therefore can be used as the basis of your legal argument.
      • 2. For research : to get citations to other relevant cases, administrative decisions, or secondary sources to support your legal argument.
  • 4. History of Legal Citators
    • Shepard’s Citations in print
      • by jurisdiction (e.g., Shepard's Federal Citations , Shepard's Texas Citations )
      • by reporter (e.g., Pacific Reporter Citations )
      • by type of authority (e.g., Shepard's Rules Citations , Shepard's Law Review Citations )
      • by topical areas (e.g., Shepard's Bankruptcy Citations )
    • Online citators
      • Shepard’s (Lexis)
      • KeyCite (Westlaw)
  • 5. How to Use a Citator
    • DIRECT HISTORY
    • (prior and subsequent history of your legal authority)
        • Was your case appealed? Was it affirmed, reversed, remanded?
        • Is your statute reversed, amended, affected by a pending legislation?
    • INDIRECT HISTORY or CITING REFERENCES
    • (listing of other cases and secondary sources that cite to your legal authority)
        • Did a later case overrule, criticize, or distinguish your case?
        • Are there cases and secondary sources that cite your case?
    • PARALLEL CITATIONS
  • 6. Example
    • Kelo v. City of New London, 843 A.2d 500 (Conn. 2004), petition for cert. granted (U.S. Sept. 28, 2004) (No. 04-108).
    • What protection does the Fifth Amendment's public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of "economic development" that will perhaps increase tax revenues and improve the local economy?
  • 7. Two Leading Precedents
    • Berman v. Parker, 348 U.S. 26 (1954).
      • Upheld the taking of private property for transfer to a private development corporation as part of an urban renewal plan.
    • Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984).
      • Upheld a taking of private property for redistribution in order to reduce the concentration of land ownership in Hawaii.
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  • 22. In-class Practice with Shepard’s
    • In the Shepard’s report for Berman , 348 U.S. 26, restrict or filter the citing references by the following:
      • Jurisdiction (U.S. Supreme Court, 9 th Circuit, and Washington State cases)
      • Containing words redevelop! /p blight in the citing documents
      • Documents that cite Berman for the point of law addressed in Lexis headnote 9 of Berman
      • Documents from year 2000 to present
      • Q: How many citing references did you see with each restriction?
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  • 38. In-class Exercise
    • You represent a client in New Jersey who wants to develop and sell a new line of vitamins. Your client wants to sell them, not through retail stores, but through a multi-level pyramid distribution plan. Is this legal in New Jersey? (Ignore any applicable federal laws).
    • Shepardize or KeyCite this case:
    • Kugler v. Koscot Interplanetary, Inc., 293 A.2d 682 (N.J. Super. Ct. Ch. 1972).
      • Is Kugler still good law?
      • Select 3-4 cases you would read first. Explain your choices.
      • You are interested in finding cases from any jurisdiction that mentions pyramid distribution/sales systems, or says fraud can take place even though the victim has not in fact been misled or deceived by the unlawful practice. Explain how you restricted your results.
  • 39. Statutes, Regulations, and Secondary Sources
    • Citators for statutes typically include:
    • Updating documents (e.g., recently passed public laws)
    • Pending legislation (that may affect the statute)
    • Historical and statutory notes that describe the legislative changes that affected the statute
    • Graphic symbols for statutes:
    • Red symbol – recently amended, repealed, ruled unconstitutional, or otherwise preempted
    • Yellow symbol – pending legislation, renumbered or transferred, or validity is otherwise called into doubt
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  • 42. How Current Are Online Citators?
    • KeyCite
        • Direct History is added within 1-4 hours of receipt of a case.
        • Overrulings are identified by the editors within 24 hours of receipt.
        • Citing cases are added as soon as they are added to Westlaw.
    • Shepard’s
        • Updated everyday, including weekends and holidays.
        • All editorial analysis codes are added within 24-48 hours of receipt of the case.
  • 43. Concluding Remarks
    • Use citators as a finding tool early in the research process.
    • Always verify the validity of legal authorities that you rely on.
    • Do not rely on the flags, signals, or graphical symbols.
  • 44. Additional Resources
    • Citator Comparison Table http://lib.law.washington.edu/ref/oncite.html#Table
    • Shepard’s Tutorial http://web.lexis.com/help/multimedia/shepards.htm
    • KeyCite Tutorial
    • http://lawschool.westlaw.com
    • Click on Discover Westlaw > Understand Westlaw > KeyCite
    • Reference Office