Shepardizing is crucial for verifying case law's current status and treatment. It helps researchers ensure they're relying on valid precedent and understand how courts have interpreted legal principles over time.
Using tools like Shepard's Citations, researchers can quickly assess a case's validity and impact. By analyzing symbols, editorial analysis, and citing cases, they gain a comprehensive view of legal developments and find additional supporting authorities.
Shepardizing in Legal Research
Purpose and Importance
- Shepardizing is the process of using Shepard's Citations, a legal citator, to determine the current status and treatment of a case
- Allows researchers to verify if a case is still good law and has not been overturned, reversed, or otherwise negatively treated by subsequent court decisions
- Helps identify later cases that have cited, criticized, or followed the original case, providing insight into how courts have interpreted and applied the legal principles from the original case
- Ensures reliance on valid, up-to-date case law and understanding of the development and current state of the legal issues involved
- Essential for thorough legal research to avoid relying on outdated or invalid precedent (overruled cases)
- Provides a comprehensive picture of a case's judicial history and impact on subsequent jurisprudence
- Shepard's Citations is the most well-known legal citator, available through LexisNexis
- Other citators include KeyCite (Westlaw) and BCite (Bloomberg Law)
- Researchers enter the citation of the case they wish to Shepardize into the citator database
- The citator generates a report listing all subsequent cases that have cited the original case, along with symbols and editorial analysis indicating the nature of the treatment
Interpreting Shepard's Symbols
Treatment Indicators
- Shepard's uses a system of symbols and abbreviations to indicate the treatment of a case by subsequent court decisions
- Key Shepard's symbols include:
- Overruled (red hexagon): The citing case has expressly overruled the original case, rendering it no longer valid precedent
- Questioned (blue Q): The citing case has questioned the continuing validity or precedential value of the original case without explicitly overruling it
- Caution (yellow triangle): The citing case has limited, distinguished, or criticized the original case, suggesting it may not apply in all circumstances
- Positive treatment (green square): The citing case has followed, affirmed, or favorably cited the original case, reinforcing its precedential value
- Symbols appear next to the citing case in the Shepard's report, allowing researchers to quickly assess the treatment
Editorial Analysis
- In addition to symbols, Shepard's provides editorial analysis summarizing the court's treatment of the original case
- Identifies relevant quotations or key points from the citing case that discuss the original case
- Helps researchers understand the context and reasoning behind the citing case's treatment without reading the full opinion
- Editorial analysis is written by LexisNexis attorneys and serves as a helpful guide, but researchers should still review the citing case for a complete understanding
Case Validity and Treatment
Assessing Current Validity
- Citators, like Shepard's or KeyCite, provide a comprehensive report of a case's history and treatment, including direct appellate history and subsequent citing decisions
- Researchers should review the entire citator report to assess the overall treatment of the case and determine if it remains valid, controlling precedent
- Negative treatment, such as overruling (red hexagon) or questioning (blue Q), may indicate that the original case is no longer reliable authority for the legal propositions it stands for
- Distinguishing treatment (yellow triangle) suggests that the original case's holding or reasoning may not apply to factually different situations in subsequent cases
- Positive treatment (green square), such as following or affirming, strengthens the precedential value of the original case
Analyzing Treatment in Context
- Researchers should carefully analyze the facts, reasoning, and holdings of both the original and citing cases to determine the extent and impact of the treatment
- Negative treatment may be limited to specific factual scenarios or legal issues, leaving other aspects of the original case intact
- Distinguishing treatment may highlight important factual differences that limit the applicability of the original case without undermining its core holding
- Positive treatment may reinforce the original case's precedential value for certain propositions while leaving other aspects open to interpretation
- Thorough analysis of the citing cases is necessary to fully understand the current status and scope of the original case's authority
Subsequent Case Citations
Identifying Citing Cases
- Shepard's and KeyCite reports list all subsequent cases that have cited the original case, organized by jurisdiction and level of court
- These citators provide the full citation, date, and a brief summary of each citing case's treatment of the original case
- Researchers can quickly scan the list to identify potentially relevant citing cases for further analysis
- Citators often allow researchers to filter results by jurisdiction, treatment type (positive, negative, distinguishing), or date range to focus on the most pertinent citing cases
Tracing Legal Developments
- Researchers can use the citing cases to trace the development of the legal issues and principles discussed in the original case
- Analyzing the facts, reasoning, and holdings of citing cases helps determine how courts have interpreted, applied, or distinguished the original case in different contexts
- Citing cases may expand or narrow the original case's holding, apply it to novel factual situations, or reconcile it with other legal doctrines
- Tracing the evolution of the legal principles through citing cases can provide a more comprehensive understanding of the current state of the law
Finding Additional Authority
- Identifying relevant citing cases can lead to additional primary and secondary sources to support legal arguments or counter opposing positions
- Citing cases may discuss related legal issues, policy considerations, or interpretive approaches that can bolster a researcher's analysis
- The citations within citing cases ("citations within citations") can point researchers to other relevant cases, statutes, or secondary sources not directly linked to the original case
- By exploring the network of citing cases and their cited authorities, researchers can build a more robust and persuasive legal argument