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

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

3. 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

4. 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

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

6. Federal Court Structure

7. 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

9. State Court Models
Also: All Court information is available in the Bluebook, T.1 or ALWD Appendix

12. 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.

13. 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

14. 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.

15. Mandatory vs. Persuasive

16. 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.

17. 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

18. 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

19. 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)

20. 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.

21. 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

22. 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

23. 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

24. 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.

25. 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.)]

26. 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

29. 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

30. 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

31. 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!

32. 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

33. 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

34. 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

35. 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.

36. 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

37. Descriptive Word Index West’s Federal Practice Digest 3d

38. 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."

39. 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

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

41. 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.

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

43. 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)

46. 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 ( ) 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

47. 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

48. 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

49. 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

50. 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

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

52. 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.

53. 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

54. 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”

55. 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

56. 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

57. 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

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

59. 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

60. 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

61. 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)

62. 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.

63. 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

64. 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.

65. 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

66. 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

67. Let’s KeyCite a Case
255 F.3d 1180

68. 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.

69. 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.

70. 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. 

71. 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

72. 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

73. Let’s Shepardize a Case
255 F.3d 1180

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

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