Fundamentals of Legal Research
Adam J. McKee, Ph.D.
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Citators are legal research tools that allow the user to find cases and other legal materials that cite a particular source. Also, the citators analyze what those sources say about the source being considered. Two of the most popular are KeyCite (on Westlaw), and Shepard’s (On LexisNexis). These citators serve a critical function in legal research by answering some very important questions.
Is this case still good law?
The moment the courts decide a case, the case has the potential to grow, evolve, and fade away over time. There are many treatments by the courts that can alter the legal force of a particular case: A case can have qualifications added, be overruled, be narrowed, be changed by statute, and so forth. It is not important to know the legal status of a ruling in 1968; it is important to know the law that is in force at present. A case decided in 1968 may still be good law, or it could be merely a legal relic with no present applicability. Citators allow the legal researcher to track the history of a case and see what changes have occurred.
Using Citators to Find Additional Cases
Once a case is identified as pertaining to a particular area of law under research, looking up that case in a citator is an excellent way to find additional cases dealing with the same area of law. In addition to cases, law reviews and other secondary sources can be identified by this method.
Using a citator starts with a known case, usually referred to as the original case (or cited case). A citing case is any case that cites your original case. A citing reference is any reference (e.g., secondary sources) that cites the original case. Most citators also provide the case history of the original case. In this context, the case history refers to the treatment of the case in various stages of litigation.
Shepardizing is the practice of using the Shepard’s Citations Service to validate a citation. This service is available through LexisNexis and in print form. The print form is inferior to the digital version in many ways, and its use is not recommended. The electronic version contains the must up to date information available, and there are no supplements to consult. The print version uses cryptic codes that are easy to overlook and misidentify. The electronic version provides information in plain (legal) English. Links to citing authorities are provided, making follow-up very easy.
The full version of Shepard’s can find the treatment of myriad legal resources, but the Academic version only does case law. It is important to understand the distinction between terms used by Shepard’s. The case that you are Shepardizing is referred to as the cited authority. The new cases (and other materials) found by Shepardizing are individually referred to as the citing authority. (Until you get this naming convention, any instructions for Shepard’s will be utterly confusing).
The most common way to Shepardize a case is to find the text of the case in question. You can also Shepardize a case if you know the citation for the case. Most universities subscribe to LexisNexis Academic, which only allows the researcher to Shepardize court cases (and not statutes, regulations, and so forth). When you Shepardize a case in LexisNexis, a report is provided that lists every case that referenced the case at hand.
From the full-text view of a case in LexisNexis, there are two methods of Shepardizing a case. The first method is to simply click on the Shepard’s Signal (found in the gray toolbar at the top of the case). The other is to use the “Next Steps” drop down menu to select “Shepardize.”
The digital version of Shepard’s uses a system of symbols to inform the researcher how the citing reference treats the source in question. There are several of these indicators that provide a wealth of information. The older text-based symbols are also noted.
Red Warning Indicator. This symbol looks like a stop sign without the letters. It means “negative treatment.” A negative treatment means that the case has been severely diminished in its legal force by being overruled, rescinded, revoked, or made obsolete. Under the old text-based system (still found in the print version of Shepard’s) the letter o is used to indicate that a case has been overruled. You will need to find the case and verify what exactly was overruled. It may have been a different issue than the one that you are concerned with in your research. Also, be on the lookout for the abbreviation Grtd. This means that a higher court has granted a hearing of the issue, and you will need to find the higher court’s ruling. The letter r is used to indicate that a case has been reversed by a higher court, and thus has no precedential value. Similarly, the letter S is used to indicate that a case has been superseded by more recent case, and the older case has lost its precedential value. The letter v is used to indicate that a case has been vacated; this means that the case is not good law and should not be cited.
Questioned Indicator. This symbol is the letter Q placed in a yellow box (q is the text based indicator as well). It indicates that the validity of the case in question has been questioned by the citing reference. The fact that a case has been questioned does not mean that it has been invalidated, but most legal researchers agree that it would be better to find additional support for your arguments based on a questioned case.
Caution Indicator. This symbol is a yellow triangle with no lettering. It lets you know that the case has been limited, explained, clarified, modified, or corrected.
Positive Indicator. This symbol is a green diamond with a plus sign in it. This means that the citing reference followed, affirmed, or approved of the case.
Citing Reference with Analysis Indicator. This symbol is a blue circle with an A in it. This means that the citing reference contained analysis of the case, but it was neither positive nor negative. This happens in cases where Certiorari is denied.
Citation Information. This symbol is a blue circle with an I in it. The presence of this symbol indicates that the case was cited, but that no analysis was presented.
Cite Checking Documents
Whether you are writing an academic research paper or a legal brief to be filed with a court, professionalism in legal research requires that the document be check for the validity of all cited authority. This includes checking all citation formats to make sure they are in accordance with the Bluebook, checking the accuracy of all citations (e.g. will it lead you correctly to the primary source?), checking the validity of all sources (i.e., are all citations still good law?), checking the accuracy of authority (i.e., does the law say what this document claims it does?), checking the accuracy of quotations (i.e., are all of the page numbers provided with quotes correct?), and checking the accuracy of quotations (i.e., are the quotes 100% the language that the court used in the opinion?).
Modification History File Created: 08/08/2018 Last Modified: 06/13/2019
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.