Using Shepard’s & KeyCite effectively

1. Using Shepard’s & KeyCite effectively Melissa Sievers Librarian RFK Main Library Melissa.Sievers@usdoj.gov 202-305-8780

2. Goals Review legal research concepts, including Headnotes Why we update cases How to use KeyCite and Shepard’s How to use citators to find additional cases Conclusion

3. Legal Research Review

4. Legal Research Review Structure of the court systems • There are generally three court levels: • Trial court • Intermediate appellate court • Final appellate court (court of last resort)

5. Legal Research Review Precedent/Stare Decisis • Stare Decisis - the doctrine under which courts adhere to precedent on questions of law in order to ensure certainty, consistency, and stability in the administration of justice • After a case has been decided, it can be applied to subsequent cases • Mandatory/Binding Authority – Opinions issued by higher courts in a jurisdiction • Persuasive/Nonbinding Authority – Opinions issued by another jurisdiction or a lower court

6. Legal Research Review Headnotes • Headnotes identify areas of law raised in a case • Headnotes are compiled by human editors • Composed of Topics and Key Numbers • Topic – Highest level heading • Key Number – Lower level headings • Digests are indexes of all issues in American law

7. Legal Research Review Headnote searching • A more inclusive way to find relevant cases than keyword searching • Find the Key Number that represents the point of law you are researching, then click on that link to get a list of related cases

8. Questions?

9. Why Use Citators?

10. Why Use Citators? KeyCiting and Shepardizing will give you two important pieces of information: • Is the case still good law or was it overruled? • How have other courts treated the case? • Distinguished? (Court decided the legal reasoning did not apply due to materially different facts) • Extensively discussed? • Criticized?

11. Why Use Citators? • KeyCite and Shepard’s are similar tools, but different databases • You should always check both because: • Flags may be assigned by editors differently • The headnotes assigned to each case may be different, so searching for more cases may give you different results • The databases use different algorithms, so keyword searches may yield different results

12. Why Use Citators? • What do they cover? • Case law • Statutes • Federal and state regulations • Agency decisions • Constitutional provisions • Court rules • U.S. patents • Administrative decisions • Law review articles • Treatises, including Restatements • Some foreign cases and secondary sources

13. Why Use Citators? Our example throughout will be: • PGA Tour, Inc. v. Martin, 532 U.S. 661 • United States Supreme Court case in which disabled golfer Casey Martin asserted that the PGA Tour could not lawfully deny him the option to ride in a golf cart between shots. Prior to this case, the PGA Tour required all golfers to walk between shots, and argued that this policy constituted an important aspect of the game of golf. The Supreme Court found for Martin in a 7–2 decision.

14. KeyCite

15. KeyCite KeyCite symbols give you a quick indication of whether a case is still good law.

16. KeyCite To KeyCite a case, type keycite or kc in the search box and enter the citation

17. KeyCite The legal issues for which the case cites Martin, represented by these headnotes. KeyCiteprovides various information about the citing references. Negative history and negative citing references appear first. How the citing case treats Martin. The depth of treatment, indicating the extent to which the case discusses Martin.

18. KeyCite Quotation marks mean the citing case quotes Martin. KeyCite indicates which case is the most negative, although it might not be the most negative for your purposes.

19. KeyCite Click “History” to see a graphic of the case’s history.

20. KeyCite Click “Citing References” to see all cases and other documents that cite Martin.

21. Questions?

22. Shepard’s

23. Shepard’s Shepard’s has more detailed symbols

24. Shepard’s To Shepardize a case, type shep: and then enter the case citation.

25. Shepard’s Here is the Shepard’s report for the Martin case. Appellate history is listed first.

26. Shepard’s You can click on “Map” to view a graphic of the case’s history.

27. Shepard’s Click on “Citing Decisions” to see a list of cases that have cited Martin and how those cases treated Martin. 272 cases have cited Martin. The list of cases is initially organized by court. Attorney-editors have identified possible negative treatment in other subsequent cases. Click “Distinguished by” to view these 15 cases.

28. Shepard’s Here is one case that distinguishes Martin. Carpenter v. Potter cites Martin for the issue represented by headnote 15, which deals with the Americans with Disabilities Act. Click the pincite to see how Carpenter distinguished Martin.

29. Shepard’s Here is some of the text in Carpenter v. Potter discussing Martin.

30. Shepard’s If you want to see other documents that have cited Martin, such as law review articles, click “Other Citing Sources.”

31. Questions?

32. Finding More Cases

33. Finding More Cases • Usually one case cites an earlier case because the later case is trying to resolve an issue similar to one addressed in an earlier case • When searching this way, limit the citing references displayed by headnote • You will see cases for your specific legal issue only • Use “view text” to see which is the correct headnote

34. Finding More Cases In Westlaw Next, go to “Citing References” and click on “Cases.”

35. Finding More Cases Narrow the results by headnote. You can select all cases under a topic or click “Specify” to choose specific headnotes.

36. Finding More Cases In Lexis Advance, click on “Citing Decisions”, then use “Narrow By” to limit by headnote

37. Finding More Cases Click the headnote that addresses your legal issue. If you do not know which headnote is relevant, you can either click “View text of headnotes”, or hover over the line for a pop-up.

38. Finding More Cases Now you are only viewing the 113 cases that cite Martin for the legal issue addressed in headnote 10.

39. Live Examples

40. Conclusion

41. Quiz! • True or False: • A red stop sign or flag means the case is bad law. • Quotation marks indicate that the citing case directly quotes your case. • A researcher can rely on Shepard’s as the final word on the precedential value because it’s what judges rely on. • A decision made at the appellate level is mandatory for a lower court to follow.

42. Quiz! • Short answer: • What does a yellow triangle mean in Shepard’s? • What do 3 bars in KeyCite mean? • If you want to find more cases in KeyCite or Shepard’s, what do you want to limit by to get a list of cases for your specific legal issue only? • Should you use just KeyCiteif you like it better?

43. Additional Resources

44. Additional Resources • Westlaw 24 hour assistance • Research 1-800-386-9378 • Technical 1-800-WESTLAW • Lexis 24 hour assistance • 1-866-836-8115

45. Need help? Ask a Librarian! http://dojnet/jmd/lib/research/askalibrarian.php

46. Training at DOJ Libraries • Legal Research Series • Learn About Legislative History (NYA) – October 9 • Administrative Law (NYA) – October 22 • Court Dockets, Part 1 (NYA) – October 29 • Apps for Legal Research (PHL) – October 30 • Court Dockets, Part 2 (online) – November 5 • Court Dockets, Part 1 (L St.) – November 13

47. Final Questions?