Glossary

1.5 Shepardizing and KeyCiting

11 min read•august 21, 2024

Legal research demands precision and up-to-date information. and are vital tools for validating legal authorities and tracking their treatment over time. These processes ensure citations remain accurate and relevant, bolstering the strength of legal arguments.

By mastering these citation-checking techniques, law students and attorneys can confidently navigate the complex web of legal precedents. Understanding how courts have interpreted and applied various authorities helps build more persuasive arguments and anticipate potential challenges to cited sources.

Purpose of citation checking

  • Citation checking forms a critical component of legal research and writing, ensuring the accuracy and reliability of legal arguments
  • This process involves verifying the current status of legal authorities and identifying subsequent developments that may impact their validity
  • Effective citation checking supports the ethical obligation of lawyers to provide competent representation to clients
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  • Confirms the current status of cited cases, statutes, and regulations
  • Verifies whether a legal authority remains good law or has been overruled, superseded, or amended
  • Helps attorneys avoid relying on outdated or invalid precedents in their legal arguments
  • Includes checking for any that may affect the persuasive value of the authority

Identifying subsequent history

  • Traces the progression of a case through various levels of the court system
  • Reveals whether a decision has been affirmed, reversed, or modified on appeal
  • Uncovers any remands or rehearings that may have altered the original ruling
  • Provides insight into how courts have interpreted or applied the cited authority over time
  • Identifies other decisions that have cited or discussed the original authority
  • Helps researchers discover more recent cases that may be more relevant to their legal issue
  • Reveals how different jurisdictions have applied or distinguished the original case
  • Assists in building a comprehensive legal argument by incorporating supporting precedents

Shepard's Citations

  • serves as a cornerstone tool in legal research, providing comprehensive citation analysis for cases, statutes, and regulations
  • This system plays a crucial role in the legal writing process by enabling attorneys to validate authorities and identify relevant subsequent history
  • Understanding Shepard's Citations is essential for law students and legal professionals to conduct thorough and accurate legal research

Origin and development

  • Created by Frank Shepard in 1873 to track the treatment of cases over time
  • Initially consisted of gummed labels attached to case reporters, listing subsequent citations
  • Evolved into bound volumes organized by jurisdiction and reporter series
  • Transitioned to electronic format in the late 20th century, enhancing accessibility and search capabilities
  • Print versions organized by reporter series and volumes, requiring manual cross-referencing
  • Online versions offer real-time updates and hyperlinked citations for efficient navigation
  • Electronic format allows for more complex search queries and filtering options
  • Online versions integrate seamlessly with other legal research platforms (Lexis)

Components of Shepard's report

  • Full citation of the Shepardized case or statute
  • Subsequent appellate history, including direct appeals and related proceedings
  • Treatment codes indicating how citing sources have interpreted the authority
  • List of citing references, organized by jurisdiction and type of source
  • Headnote analysis linking specific legal points to relevant citing references

KeyCite system

  • serves as West's proprietary citation checking tool, offering an alternative to Shepard's Citations
  • This system integrates seamlessly with Westlaw's legal research platform, providing comprehensive citation analysis
  • Understanding KeyCite is crucial for legal professionals using Westlaw to validate authorities and track subsequent developments

West's citation checker

  • Developed by West Publishing Company as a competitor to Shepard's Citations
  • Launched in 1997 as part of the Westlaw legal research platform
  • Covers cases, statutes, regulations, and administrative decisions
  • Utilizes West's extensive database of legal materials for comprehensive analysis

Flags and symbols

  • Red flag indicates negative treatment, such as overruling or significant criticism
  • Yellow flag suggests caution, indicating some negative treatment or possible invalidity
  • Blue H symbol denotes direct history, such as appeals or subsequent proceedings
  • Green C symbol represents citing references without negative treatment
  • Q symbol indicates the authority has been questioned by other courts

Depth of treatment stars

  • Four-star rating indicates extensive discussion of the cited authority
  • Three stars represent substantial discussion or multiple references
  • Two stars signify moderate discussion or analysis
  • One star indicates a brief mention or citation of the authority
  • Star ratings help researchers quickly identify the most relevant citing references

Citation analysis process

  • Citation analysis forms a critical step in legal research, ensuring the validity and relevance of cited authorities
  • This process involves systematically examining the treatment of legal sources to assess their current status and persuasive value
  • Mastering citation analysis techniques is essential for law students and legal professionals to build strong, well-supported arguments

Locating the citation

  • Identify the full citation of the authority to be checked, including reporter, volume, and page number
  • Utilize the citation format appropriate for the jurisdiction and type of authority
  • Verify the accuracy of the citation to ensure proper retrieval in citation checking systems
  • Consider using parallel citations when available to facilitate cross-referencing

Reading treatment codes

  • Familiarize yourself with the specific treatment codes used by the citation service (Shepard's or KeyCite)
  • Interpret codes to understand how subsequent cases have treated the authority (overruled, distinguished, followed)
  • Pay attention to the hierarchy of treatment codes, focusing on the most significant negative treatments
  • Consider the context and reasoning behind the treatment when evaluating its impact on the authority's validity

Evaluating subsequent history

  • Review the direct history of the case, including appeals, remands, and rehearings
  • Assess the impact of subsequent proceedings on the original ruling or holding
  • Consider how changes in the case's status may affect its precedential value
  • Examine any legislative or administrative actions that may have superseded or codified the decision

Positive vs negative treatment

  • Understanding the distinction between positive and negative treatment is crucial for assessing the strength of legal authorities
  • This analysis helps legal professionals determine the persuasive value and current status of cited sources
  • Recognizing various forms of treatment enables researchers to build stronger arguments and anticipate potential counterarguments

Distinguishing cases

  • Occurs when a court acknowledges a but finds it inapplicable to the current case
  • Involves identifying factual or legal differences that justify a departure from the precedent
  • Does not necessarily invalidate the original authority but may limit its applicability
  • Requires careful analysis to determine the significance of the distinction and its impact on the cited authority's persuasive value

Overruled decisions

  • Represents the strongest form of negative treatment, where a higher court explicitly rejects a lower court's ruling
  • Typically occurs when a supreme court overturns a precedent set by a lower court
  • Renders the overruled decision no longer valid as binding precedent within the jurisdiction
  • May still retain some persuasive value in other jurisdictions or for historical context

Questioned authority

  • Indicates that a court has expressed doubts about the correctness or continued validity of a precedent
  • Does not directly overrule the authority but suggests potential weaknesses in its reasoning or applicability
  • May signal a shift in legal thinking or the potential for future overruling
  • Requires careful consideration when citing the questioned authority, acknowledging potential limitations

Citing references

  • Citing references provide valuable insight into how courts and scholars have interpreted and applied legal authorities
  • Analyzing these references helps researchers build comprehensive legal arguments and identify trends in jurisprudence
  • Understanding the various types of citing references enables legal professionals to assess the broader impact and relevance of cited authorities
  • Identify cases that have cited or discussed the original authority
  • Examine how different courts have interpreted or applied the legal principles established in the cited case
  • Look for cases with similar fact patterns or legal issues to strengthen analogical reasoning
  • Consider the persuasive value of citing references based on jurisdiction, court level, and recency

Secondary sources

  • Explore law review articles, treatises, and legal encyclopedias that have cited the authority
  • Analyze scholarly interpretations and critiques of the cited case or statute
  • Identify emerging legal theories or policy arguments related to the authority
  • Use secondary sources to gain a deeper understanding of the historical context and broader implications of the cited authority

Statutes and regulations

  • Examine any statutory or regulatory references to the cited authority
  • Identify instances where legislatures have codified or modified principles
  • Look for administrative regulations that interpret or implement relevant statutes
  • Consider the interplay between judicial decisions and legislative or administrative actions

Updating statutes and regulations

  • Keeping abreast of changes in statutes and regulations is crucial for ensuring the accuracy and currency of legal research
  • This process involves tracking legislative amendments, administrative updates, and judicial interpretations of statutory law
  • Understanding how to update statutes and regulations is essential for legal professionals to provide sound advice and avoid relying on outdated authorities

Legislative changes

  • Monitor recent legislative sessions for amendments to relevant statutes
  • Check for newly enacted laws that may supersede or modify existing statutory provisions
  • Examine legislative history materials to understand the intent behind statutory changes
  • Consider the effective dates of amendments and any transitional provisions

Administrative updates

  • Track revisions to administrative regulations that interpret or implement statutes
  • Review agency guidance documents and policy statements for changes in regulatory interpretation
  • Monitor Federal Register (federal) or state equivalents for proposed and final rule changes
  • Consider the impact of executive orders or agency reorganizations on regulatory enforcement

Constitutional challenges

  • Identify any pending or recent court cases challenging the constitutionality of statutes or regulations
  • Examine judicial decisions that have struck down or upheld statutory provisions on constitutional grounds
  • Consider the impact of constitutional rulings on the validity and enforcement of related statutes and regulations
  • Monitor for any legislative responses to judicial decisions on constitutional issues

Citation checking strategies

  • Developing effective citation checking strategies is essential for conducting efficient and thorough legal research
  • These strategies help legal professionals navigate the vast amount of information available in citation databases
  • Mastering these techniques enables researchers to quickly identify the most relevant and impactful treatments of cited authorities

Narrowing search results

  • Use date restrictions to focus on the most recent treatments of the authority
  • Apply jurisdictional filters to prioritize binding or highly persuasive authorities
  • Utilize keyword searches within citing references to identify specific legal issues or factual scenarios
  • Employ Boolean operators (AND, OR, NOT) to refine search queries and exclude irrelevant results

Filtering by jurisdiction

  • Prioritize citing references from the same jurisdiction as the original authority
  • Consider the hierarchical relationship between courts when evaluating the precedential value of treatments
  • Examine how different jurisdictions have interpreted or applied the authority in similar cases
  • Look for trends or splits in authority across multiple jurisdictions

Focusing on relevant treatments

  • Concentrate on negative treatments that may impact the validity or persuasive value of the cited authority
  • Identify cases that have extensively discussed or applied the legal principles from the original authority
  • Look for treatments that address specific legal issues or fact patterns relevant to your research question
  • Consider the depth of treatment indicators (stars or symbols) to prioritize more substantive discussions

Limitations of citation services

  • While citation checking services provide invaluable tools for legal research, it is important to recognize their limitations
  • Understanding these constraints helps legal professionals supplement their research and exercise critical judgment when relying on citation analysis
  • Awareness of potential shortcomings enables researchers to develop strategies for comprehensive and accurate legal analysis

Coverage gaps

  • Some citation services may have limited coverage of older cases or specific jurisdictions
  • Certain types of authorities (administrative decisions, unpublished ) may not be fully represented
  • Coverage of secondary sources and non-legal materials may vary between citation services
  • International or foreign law citations may have less comprehensive treatment analysis

Timeliness of updates

  • There may be a lag between court decisions and their inclusion in citation databases
  • The frequency of updates can vary between print and online versions of citation services
  • Recent legislative changes or pending cases may not be immediately reflected in citation reports
  • Researchers should verify the currency of information, especially for time-sensitive matters

Interpretation challenges

  • Automated systems may sometimes misclassify treatments or miss nuanced discussions
  • The context and reasoning behind treatments may not be fully captured by standardized codes
  • Differences in terminology or citation formats across jurisdictions can lead to inconsistencies
  • Human judgment is often necessary to fully understand the implications of complex legal treatments

Alternative citation tools

  • While Shepard's and KeyCite dominate the legal citation checking landscape, alternative tools offer additional options for researchers
  • These alternative resources can supplement traditional citation services and provide different perspectives on legal authorities
  • Understanding the strengths and limitations of various citation tools enables legal professionals to conduct more comprehensive research

Google Scholar

  • Provides free access to a wide range of legal opinions and scholarly articles
  • Offers a "cited by" feature to identify subsequent citations to a case or article
  • Allows researchers to track citations across multiple disciplines, including law and social sciences
  • Lacks the sophisticated treatment codes and analysis found in dedicated legal citation services

Fastcase

  • Offers a more affordable alternative to traditional legal research platforms
  • Provides citation analysis through its "Authority Check" feature
  • Includes visual representations of citation relationships through its "Interactive Timeline" tool
  • May have more limited coverage compared to larger, established citation services

Bloomberg Law

  • Integrates citation checking capabilities within its comprehensive legal research platform
  • Offers "BCite" citation analysis for cases, including treatment indicators and depth of discussion metrics
  • Provides citation checking for statutes and regulations through its "Smart Code" feature
  • Includes unique analytics tools for assessing the influence and relevance of cited authorities

Integrating citation checking

  • Incorporating citation checking into the legal research and writing process is essential for producing accurate and well-supported work
  • Effective integration of citation analysis enhances the quality of legal arguments and helps anticipate potential challenges
  • Understanding how to seamlessly incorporate citation checking at various stages of legal work is crucial for law students and practicing attorneys
  • Begin with preliminary citation checks to validate key authorities early in the research process
  • Regularly update citation checks as the research progresses to capture recent developments
  • Use citation analysis to identify related cases and expand research in relevant directions
  • Incorporate citation checking results into research notes and outlines to track the status of authorities

Writing memoranda

  • Conduct thorough citation checks before finalizing legal memoranda or
  • Address any negative treatments or subsequent history in the analysis of cited authorities
  • Use citation information to strengthen arguments by highlighting positive treatments or widespread adoption
  • Include relevant citing references to demonstrate the broader impact or acceptance of legal principles

Preparing for oral arguments

  • Review citation checks for all key authorities to anticipate potential challenges from opposing counsel or judges
  • Prepare explanations or distinctions for any negative treatments of cited cases
  • Identify recent developments or pending cases that may impact the persuasive value of authorities
  • Use citation analysis to find supporting authorities from the specific court or judge hearing the argument

Key Terms to Review (16)

ALWD Citation Manual: The ALWD Citation Manual is a comprehensive guide designed to assist legal professionals and students in properly citing legal documents and sources in their writing. It emphasizes consistency, clarity, and the importance of accurate citations in legal writing, making it a crucial resource for ensuring that legal arguments are well-supported and easily verifiable.
Bluebook: The Bluebook is a comprehensive citation guide that provides rules for citing legal documents, cases, statutes, and other legal materials. This essential resource helps legal professionals ensure accuracy and consistency in legal writing, allowing them to properly attribute sources and maintain credibility. Its rules connect to various practices such as Shepardizing and KeyCiting, referencing legal encyclopedias and treatises, and writing academic legal papers, emphasizing the importance of proper citation in all forms of legal work.
Briefs: Briefs are concise written documents that summarize the key arguments and legal issues in a case, providing an overview of the relevant facts, applicable laws, and the conclusions drawn from them. They serve as a vital tool for legal practitioners to organize their thoughts and present their case effectively, connecting closely with various aspects like citation methods, the distinction between legal holdings and dicta, the principles of objective legal writing, and the use of legal research platforms.
Case law: Case law refers to the body of law created by judicial decisions and interpretations of statutes, which serve as precedents for future cases. It plays a crucial role in shaping legal standards and principles, helping to interpret and apply statutory laws in specific situations.
Citing Authority: Citing authority refers to the practice of referencing legal sources, such as cases, statutes, and secondary materials, to support legal arguments and assertions. This process is crucial in establishing credibility and backing claims made in legal writing, ensuring that arguments are anchored in recognized legal precedents and texts.
Currency check: A currency check is a verification process used to assess the current validity and relevance of legal authority or precedent in legal research. This process ensures that the legal sources being utilized, such as cases, statutes, or regulations, are still in effect and have not been overturned, amended, or otherwise affected by subsequent legal developments. Staying current with legal authority is crucial for effective legal practice and accurate legal writing.
KeyCite: KeyCite is a legal research tool that helps users check the validity of legal cases, statutes, and regulations by providing information on whether a legal authority has been overturned, affirmed, or cited in subsequent cases. This tool is essential for ensuring that the legal precedents and statutes used in legal arguments are still good law, connecting seamlessly with online legal databases, Shepardizing practices, and various legal research platforms.
KeyCiting: KeyCiting is the process of using legal research tools, specifically KeyCite, to verify the validity and subsequent history of a legal case or statute. This tool helps legal professionals determine whether a legal authority is still good law by tracking its treatment in subsequent cases, statutes, and secondary sources. It plays a vital role in ensuring that legal arguments are based on reliable and authoritative sources.
Legal Ethics: Legal ethics refers to the rules and standards governing the conduct of lawyers and legal professionals, ensuring they uphold integrity, honesty, and professionalism in their practice. It encompasses principles such as confidentiality, conflicts of interest, and the duty to represent clients diligently while maintaining respect for the legal system. Legal ethics is crucial in maintaining public trust in the legal profession and is tied closely to various practices that enhance ethical standards within legal research and writing.
Negative Treatment: Negative treatment refers to the indication that a legal case, statute, or regulation has been criticized, overruled, or found to be no longer good law by subsequent cases or legal authority. This term is essential for understanding the reliability and current status of legal precedents when conducting legal research, as it signals to researchers that the cited authority may not be a safe basis for arguments or decision-making.
Opinions: Opinions in the legal context refer to the formal written explanations provided by judges or courts, outlining the rationale behind their decisions in cases. These opinions play a crucial role in shaping legal precedents, influencing future cases, and providing insights into how laws are interpreted. Understanding opinions is essential for analyzing case law and distinguishing between the binding parts of a decision and other commentary.
Precedent: Precedent refers to a legal principle or rule that is established in a previous court decision and is binding or persuasive in subsequent cases with similar issues or facts. This concept is foundational in common law systems, where courts rely on past decisions to ensure consistency and predictability in the law.
Shepard's Citations: Shepard's Citations is a legal research tool that helps users track the history and treatment of legal cases, statutes, and regulations. This resource provides information on whether a case is still good law, how it has been cited in subsequent cases, and any negative treatment it may have received, ensuring that legal professionals can verify the authority and relevance of legal precedents effectively.
Shepardizing: Shepardizing is the process of using a citation service, such as Shepard's Citations, to verify the validity and current status of legal cases, statutes, or regulations. This practice is essential for legal research, as it ensures that the legal authorities cited are still good law and have not been overruled or negatively treated by subsequent decisions. By understanding how to properly shepardize sources, legal professionals can build stronger arguments and avoid citing outdated or invalid legal precedents.
Treatment symbols: Treatment symbols are indicators used in legal research to communicate how a case has been treated by subsequent courts, including whether it has been followed, distinguished, or overruled. These symbols are essential for understanding the authority and reliability of a case, helping legal researchers quickly assess its relevance and current standing in the law.
Validity Check: A validity check is a process that verifies the soundness and authority of legal citations or references in research and writing. It ensures that the sources cited are credible, relevant, and still in effect, which is crucial for maintaining the integrity of legal arguments and ensuring accurate legal research. This process is especially important when using citation tools like Shepard's or KeyCite to confirm the current status of case law or statutes.
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