Kyle K. Courtney Northeastern University Law Researching Case Law Kyle K. Courtney Northeastern University Law

Plan for Today Overview of court hierarchy and authority Case law reporting/publication Publication patterns of case law Finding Cases Basic Citators

Where are we in the stages of a Research Plan? familiarize yourself with the area of law – secondary sources locate, read, and analyze primary authority make sure primary authority is good law – cite check, validate, update when appropriate, locate additional primary and secondary authorities

Reasons to Research Case Law Ethical duty to cite to mandatory authority Issue is covered by common law Issue is covered by statute, regulation, or rule, but cases interpret and apply

Basic Court Structure Three Tiers Trial Level Appellate Level Court of Last Resort Other models, courts, etc.

Federal Court Structure

Typical Court Structure LEVEL FEDERAL MASS. Trial Court District Courts (e.g.,MA Dist. Ct.) Superior Court Intermediate Appellate Courts of Appeal (e.g., 1st Cir.) Mass. Appeals Court Highest Appellate Supreme Court Supreme Judicial Court

State Court Models http://www.ncsconline.org/D_Research/Ct_Struct/index.html Also: All Court information is available in the Bluebook, T.1 or ALWD Appendix

Definition of Types of Opinions If there is more than one judge…. Majority – opinion garners more than half the votes and resolves the case Dissent – expresses the views of the judge(s) who would have reached a different result in the case Concurrence – expresses the views of the judge(s) who favor the majority’s results, but for different reasons Plurality Opinion – no opinion garners over half of the votes. The opinion garnering the largest number of votes, the plurality, generally is the most influential and resolves the dispute between the parties.

Which case is right for my research? Mandatory v. Persuasive Publication status (good law/current law ) Factual similarity or quality of reasoning ** Always look to see how the case was treated in subsequent decisions

Mandatory vs. Persuasive Mandatory authority means those primary sources to which a court must conform its decisions, including that jurisdiction’s constitution, statutory code, administrative regulations, and cases. Persuasive authority refers to any writing that influences or is used to influence the decisions of a court but is not binding upon it.

Mandatory vs. Persuasive

Stare Decisis is your friend! Stare decisis “dictates that once a court has established a precedent in determining a point of law, that court and courts of subordinate rank in that jurisdiction will subsequently conform their rulings to that decision, so that similar questions are resolved similarly.” It should be noted that while stare decisis is “the foundation of the American legal system,” it has sometimes been disregarded in favor of compelling social arguments.

Publication Status 27,000-28,000 decisions issued by federal courts of appeal alone. Not every decision is published Highest % Published: Highest court in fed/state systems Less % Published: Intermediate Appellate Courts Least % Published: Trial Courts

What factors affect the decision to publish? Decision likely to be published if: Establishes a new legal rule Develops/significantly explains existing rule Criticizes or questions existing law Resolves conflicting caselaw Discusses little discussed rule Applies old rule to a new situation Significant public interest

However, even unpublished decisions are published! Westlaw/Lexis Some print materials (West) Certain courts Are unpublished decisions precedential? Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000). The Eighth Circuit declared unconstitutional its local rule providing that unpublished opinions do not have precedential effect. The court in Hart v. Massanari, 266 F.3d 1155, (9th Cir. 2001), held that Ninth Circuit Rule 36-3, providing that unpublished dispositions and orders of the Ninth Circuit are not binding precedent, is constitutional, and disagreed with the holding of Anastasoff. Know your local rules! (MA - Regulation of Appellate Practice Rule I:28)

Supreme Court Decides (2006) Supreme Court says unpublished opinions can be cited in federal courts Federal Rule of Appellate Procedure 32.1 The new rule takes effect unless Congress countermands it before Jan 1st, 2007. The new rule does not dictate the precedential value that circuits can assign to unpublished opinions, but attorneys will always be allowed to cite them to the courts.

Publication Sequence of Opinions Slip opinions – The decision as issued by the court Print Electronic (example U.S. Supreme Court) Advance sheets - paperback books collecting several cases until bound volume is published Bound reporters Unofficial vs. Official

National Reporter System “National Reporter System” refers to all the West case reporters – report cases from all 50 states and all federal courts 7 regional reporters, e.g. North Eastern Reporter 30 state reporters, e.g. Massachusetts Decisions various federal reporters

West's Reporter system is made up of the following titles: Federal Supreme Court Reporter Federal Reporter--(Covering Circuit Courts of Appeals) Federal Supplement--(Covering U.S. District Courts) Federal Rules Decisions Regional Atlantic Reporter North Eastern Reporter North Western Reporter Pacific Reporter South Eastern Reporter South Western Reporter Southern Reporter

These early geographical grouping reflect the population distribution at the time the National Reporter System was being developed. It was assumed that the population in each region would grow at about the same rate. This didn’t happen, but the regional reporters were so well established that the regions remain the same.

Reporters (Continued) Cases are published in reporters in chronological arrangement by decision date. OFFICIAL UNOFFICIAL Official Reporters contain only the written opinion of the judge. [Ex. Official reports of the United States Supreme Court are found in the United States Reports, (U.S.) published by the Government Printing Office (GPO)]. Unofficial Reporters contain helpful research aids (headnotes, etc.). Because they are not published under the authority of the state or federal government they are considered unofficial. [Ex. are the Supreme Court Reporter (S.Ct.) and United States Supreme Court Reports, Lawyers' Edition (L.Ed.)]

Case Headnotes Headnote 2 Every case in the National Reporter System has at least one headnote. A headnote is a paragraph summary of a single point of law discussed in the case. Every headnote has at least one Topic & Key Number. Headnotes appear in the order the points of law are discussed in the case. Headnote 1

West Topic & Key Number System Classification system with at least one topic and key number assigned to each point of law in each reported case Extensive outline of the entire body of case law in this country Index to entire National Reporter System, helping you locate cases with similar legal issues in any jurisdiction

Digest (the Indexes to Reporters) Case Reporters are arranged chronologically not what a legal researcher usually needs usually need to find cases by subject Digests make cases accessible by subject Topics and key numbers are used to classify case headnotes by subject Digests consist of case headnotes organized alphabetically by topic then numerically by key number

Lionel Hutz, Esq. and Digests Marge: So, Mr. Hutz, does my husband have a case? Hutz: I'm sorry, Mrs. Simpson, but you can't copyright a drink. This all goes back to the Frank Wallbanger case of '78. How about that! I looked something up! These books behind me don't just make the office look good, they're filled with useful legal tidbits just like that!

Components of Digests “Useful legal tidbits” Collection of case summaries organized by topic (arranged A to Z) Descriptive Word Index (Topic index for case summaries) Words and Phrases (volumes alphabetically list words or phrases “judicially defined” in the indexed cases) Table of Cases

Topic Outline Divides law into 400+ digest topics Each topic addresses a broad legal issue Breaks down each topic into subheadings Contains approximately 100,000 key numbers Topics are occasionally added, eliminated, or renamed

Types of Digests Generally correspond to case reporters one for each state few regional digests (Atlantic, North Western, Pacific, and South Eastern) American Digest System (a master index to all the case law in the United States) Federal Practice Digests Supreme Court Digest U.S. Supreme Court Digest, Lawyer’s Edition Most digests have more than one series

Descriptive Word Index Each digest set includes a Descriptive Word Index. Use Descriptive Word Index of digest to identify topic(s) & key number(s) for relevant cases.

Use Digests to Find Relevant Cases Look in Descriptive Word Index for words that describe the pertinent facts of the case words that describe the legal question involved Most descriptive words fall into 1 of 5 categories of elements common to every case: Parties or facts Places and things Issues or basis of action Defenses Relief sought

Descriptive Word Index West’s Federal Practice Digest 3d

Table of Cases/Defendant-Plaintiff Table Digests can help you find cases when you have only a partial citation. The table of cases is an alphabetical listing of cases in that digest. It lists cases with the plaintiff's name first. If you know only the defendant's name, the defendant-plaintiff table should be consulted. An advantage of using the table of cases, rather than the defendant-plaintiff table, is that the table of cases lists all of the topics and key numbers under which that case can be found. Ex. if you know the jurisdiction, one or more names of the parties and a general time period, a full citation can be found by using either the "table of cases" or the "defendant-plaintiff table."

Table of Cases West’s Federal Practice Digest 3d Table of Cases Reprinted from West’s Federal Practice Digest 3d Table of Cases Reprinted from West’s Federal Practice Digest 3d

Defendant-Plaintiff Table West’s Federal Practice Digest 3d

Words and Phrases Words and Phrases volumes alphabetically list words or phrases judicially defined in the indexed cases. “Judicially Defined” the legal definition of a word or phrase, as given by statute or as determined by courts Words and Phrases lists the case citations where the definition was offered.

Reporter/Digest Review Case involving Los Angeles News Service One of the major networks (ABC, CBS, NBC) Federal Discuses Fair Use Rodney King Riots

Use Digests to Find Relevant Cases Use the topic(s) & key number(s) identified in Descriptive Word Index to find relevant headnotes in case summaries volumes. Most volumes of digest consist of case summaries Summaries are actually individual headnotes extracted from cases and rearranged by topic A single case is often represented under multiple topics in a digest Each summary includes the name of the case and its citation(s)

Other Digests Century Digest,  indexing cases rendered during the period 1658 through 1896;  Decennial Digests -  indexing cases in ten-year chunks in the 1st through 8th Decennial Digests (1897-1975) and, beginning with the 9th Decennial Digest, indexing each decade in two parts, "Part 1" and "Part 2."   Generally used for “scorch the earth” type research

Citators Overview of citators Why you must use a citator When to use a citator Shepard's on LexisNexis KeyCite on Westlaw It’s hard being a Law Librarian in Springfield C:\WINNT\Profiles\k.courtney\Desktop\homer_jail_book.mov

Where are we in the stages of a Research Plan? familiarize yourself with the area of law – secondary sources locate, read, and analyze primary authority make sure primary authority is good law – cite check, validate, update when appropriate, locate additional primary and secondary authorities

What Is a Citator? A citator lists all subsequent cases that have cited the case in question may also list selected secondary authorities Additional features may provide parallel citation info about nature of what later case said filters – e.g., jurisdiction, headnote, date depth of treatment graphical KeyCite alert services

Citator Terminology Cited Case – the case you have found and whose value you are trying to determine “KeyCited Citation” – KeyCite “Citation You Entered” – Shepard’s Citing References – authorities that have specifically mentioned the cited case History – what happened in cited case itself “full history,” “negative indirect history” “prior history,” “subsequent appellate history” Treatment – how other cases dealt with case

Online Citators LEXIS has Shepard’s. Westlaw has KeyCite. Still the “industry standard.” Westlaw has KeyCite. Good as a research tool.

Using Online Citators Often more efficient than the print version. No need to look in several books. Factor in time on computer and billable time. Know how the services charge you.

Why to Use a Citator #1 – Validation / cite checking: to check precedential value of case (“Is it still good law?”) Check for negative and positive history Check for negative treatment

Decisions Are Final Once case is published, its language will not change no pocket parts not “updated” in usual sense Once appellate process is completed, resolution of case as applied to its parties will not change Citators “update” current value of case as precedent, i.e., whether it is still “good law”

History – Same Case, Later Decision Reversed – reverses the case you are checking (cited case) Vacated – vacates or withdraws cited case Modified – modifies or changes cited case Affirmed – affirms cited case

Treatment – Different Case Overruled – expressly overrules all or part of the cited case Limited – restricts application of cited case Criticized – disagrees with reasoning/result of cited case Questioned – questions the continuing precedential value of cited case Distinguished – differs from cited case, usually because of different facts

Caution Don’t rely solely on symbols and status flags! Citators are merely tools Use to identify citing references that may have had an impact on your case But always read those references and decide for yourself what they mean

Why to Use a Citator #2 – Research: to find other authority on the same subject Primary authority mandatory persuasive Secondary authority

KeyCite (Westlaw) Contains Direct appellate history of a case Negative indirect history of a case Citing references to cases, administrative decisions and secondary sources on Westlaw that have cited a case Complete integration with the West Key Number System Citing references to pending legislation affecting a federal statute Citing references to cases, administrative decisions and secondary sources that have cited a state or federal statute or a federal regulation

Accessing KeyCite KeyCite this citation text box When viewing the full text of a document while conducting research: Click on status symbols (flag) in top right-hand corner of “main frame” Click the KC History tab or KC Citing Ref tab in the right frame

KeyCite Symbols Negative history; not good law Negative treatment; can still use History, but not negative Citing references, but no history Citing case (later case) directly quotes cited case (your case)

KeyCite Symbols Depth of Treatment Stars Examined - The citing case contains an extended discussion of the cited case, usually more than a printed page of text. Discussed - The citing case contains a substantial discussion of the cited case, usually more than a paragraph but less than a printed page. Cited - The citing case contains some discussion of the cited case, usually less than a paragraph. Mentioned - The citing case contains a brief reference to the cited case, usually in a string citation.

Evaluating KeyCite Results Look at KC History Same case as it progresses through the court system. If you get a red flag, be wary of using the source. If you get a yellow flag, it’s probably fine to use the source. If you get an H or C, the source is still good

Evaluating KeyCite Results Look at KC Citing References Direct History (or Graphical) traces the case through the appellate process and includes both prior and subsequent history. Negative Citing References lists cases outside the direct appellate line that may have a negative impact on the precedential value of the case. Related References lists other cases that involve the same parties and facts as the case, whether or not the legal issues are the same. Court Documents lists the court documents, such as briefs and pleadings, associated with the litigation.

Using Limitations on KC Citing Use to restrict results and make viewing results more manageable and meaningful. Headnotes Locate Jurisdiction Date Document type Type of treatment

Other KeyCite Tools TOA = Table of Authorities Status of authorities cited within the case you are checking. KeyCite Alert (Monitor with KeyCite Alert) Clipping service that will update your KeyCite entry Hypertext links to full citing documents

Let’s KeyCite a Case 255 F.3d 1180

What Shepard’s Helps You Do Determine the current status of a case, statute, or other legal authority, Locate the most recent decisions. Find decisions involving legal or factual issues similar to your case. Find statute annotations and law review articles that have cited your case.  

Accessing Shepard’s Use a text box While within a case: Click the status symbol. Click the Shepard’s hyperlink Clikc the Shepard’s tab at the top of the page.

Two Reports Shepard’s for Research: A great way to start your research. Begin your research with all the cases, secondary sources, statutes and annotations that cite your authority. Shepard’s for Validation: Use this report for a list of only those citations that determine if your case is still good law. 

Shepard’s Signals Warning - Negative treatment Caution - Possible negative treatment Positive treatment Cited and neutral analysis Citation information available Questioned (New) Validity questioned by citing references

Using Shepard’s Focus Search (Limit or focus results) Show Signals Hyperlinks to pinpoint pages Viewing Options All Neg All Pos Any Custom Restrictions Table of Authorities (TOA) Shepard’s Alert – clipping service

Let’s Shepardize a Case 255 F.3d 1180

Tip Citations on KeyCite and Shepard’s are not always in ALWD or Bluebook format!

What We Covered Today Overview of court hierarchy and authority Case law reporting/publication Publication patterns of case law Basic Citators