1. Using Free Shepard’s and KeyCite in the Law Library Presented by the Alameda County Law Library April 30, 2009

2. What is Shepardizing? A LexisNexis product, the Shepard’s Citations Service is a citation updating tool that allows researchers to retrieve a complete list of cases, statutes, regulations, and select secondary authorities that have cited to an earlier case, statute, or regulation, potentially affecting the precedential value of the earlier authority. Shepard’s is most commonly used to determine the continuing precedential value of a case. –A Shepard’s Report reveals the evolution of a case since publication as it has been applied in the courts- has the case been persuasive or influential, its reasoning followed by later courts, or has it been overruled, criticized, or ignored?

3. What Is Shepardizing? Shepard’s organizes the citing references by analysis type and jurisdiction, enabling researchers to quickly: –Determine if the citation they have Shepardized is still considered valid legal authority for the issue they are researching –Determine if the citation they have Shepardized has been strengthened or weakened by citing authorities –Identify additional, related primary and secondary authorities

4. Why Is Shepardizing Important? It is an attorney’s professional responsibility to present “good law” to the court, supporting their arguments in motions and briefs with citations to valid legal authorities. Citing to authorities that are no longer considered good law can result in an attorney being embarrassed or reprimanded by the judge Shepardizing is a critical step in the research process

5. Advantages of Shepard’s Online Interface Faster, less cumbersome to use than the print version Hyperlink quickly to the full-text of the original citation and any citing references Customize your report Most up-to-date content available

6. What Can Be Shepardized? Case law Statutory citations Regulations Constitutional provisions Court rules Agency decisions Restatements Law review articles U.S. patents

7. Functions of Shepardizing: Verify a Legal Citation Determine the continuing precedential, persuasive or authoritative value of a case or other type of primary authority by reviewing both its direct history and all citing references. –Take note of Shepard’s signals and analytical treatment notations, designed to alert researchers to negative and/or positive treatment by later authorities.

8. Functions of Shepardizing: Find Additional Authorities Review citing references contained in your Shepard’s report to locate additional primary and secondary authorities on point, including case law, statutes, regulations, Restatements, treatises, law reviews, and court documents.

9. Before You Shepardize: Identify the Proper Citation Format To Shepardize a citation, it must be entered in a format recognized by Shepard’s. Users can look up the citation format of a primary or secondary source by clicking on the “Citation Formats” hyperlink next to the search box. This will open the “Citation Format Assistant” in which you will enter the name of the publication to retrieve the proper citation format.

10. Let’s Shepardize! Smith v. Lewis 13 Cal. 3d. 349 Smith v. Lewis 13 Cal. 3d. 349 (1975) Smith v. Lewis 13 Cal. 3d. 349 Select the “Shepard’s for Research” option, which will generate a Shepard’s Report that includes the prior and subsequent history of the case along with all citing references.

11. Elements of a Shepard’s Report Shepard’s Summary Prior History Citing Decisions Other Sources

12. Shepard’s Summary Snapshot of the Shepard’s Report: -Shepard’s signal -Hyperlinks to citing references, organized by analysis type -Hyperlinks to LexisNexis Headnotes Smith v. Lewis 13 Cal. 3d. 349 Smith v. Lewis 13 Cal. 3d. 349 (1975) Smith v. Lewis 13 Cal. 3d. 349

13. Shepard’s Signals Demystified Assigned by Lexis editors, Shepard’s signals provide an overall indication of the strength of a case based on treatment by citing references “First Alert” to the researcher

14. Analytical Treatment by Citing Cases- Treatment Notations Affirmed: On appeal, reconsideration, or rehearing, the citing case affirms or adheres to the reasoning employed by the cited case. Followed: The citing case relies on the cited as controlling or persuasive authority Explained: The citing case explains or interprets the reasoning or holding of the cited case Distinguished: The citing case differs from the cited case in either fact situation or legal issue Criticized: The citing case criticizes some aspect of the cited case, although the citing court may not have the authority to affect its precedential value Questioned: The citing case questions the continuing validity or precedential value of the cited case because of intervening circumstances, such as judicial or legislative overruling. Overruled: The citing case overrules all or part of the cited case Reversed: On appeal, reconsideration, or rehearing, the citing case reverses the cited case.

15. Prior History Includes both the prior case history and subsequent appellate history of the case you have Shepardized (direct history) Includes both the prior case history and subsequent appellate history of the case you have Shepardized (direct history) Smith v. Lewis 13 Cal. 3d. 349 Smith v. Lewis 13 Cal. 3d. 349 (1975) Smith v. Lewis 13 Cal. 3d. 349

16. Citing References Smith v. Lewis 13 Cal. 3d. 349 Smith v. Lewis 13 Cal. 3d. 349 (1975) Smith v. Lewis 13 Cal. 3d. 349 Organized by court, full citations given along with pinpoint citations to Organized by court, full citations given along with pinpoint citations to the specific page(s) in each citing decision where the Shepardized case is referenced.

17. CAUTION: Review Citing Cases Though the Shepard’s signals and treatment notations provide some indication of the precedential value of a case or other authority, researchers must not rely on these editorial treatments as the “final word” concerning the continuing validity of a case. ex: a case flagged overruled may only be overruled for a single point of law. It is imperative that the researcher carefully review any citing cases that indicate negative treatment and come to their own conclusion about the precedential value of the case for the legal issue they are researching. Pinpoint citations direct researchers to specific passages where citing decisions have referenced the case being Shepardized

18. Citing Non-Case Authorities Smith v. Lewis 13 Cal. 3d. 349 Smith v. Lewis 13 Cal. 3d. 349 (1975) Smith v. Lewis 13 Cal. 3d. 349 Review non-case authorities that have cited your case, including annotated statutes, regulations, and agency decisions

19. Citing Secondary Sources Smith v. Lewis 13 Cal. 3d. 349 Smith v. Lewis 13 Cal. 3d. 349 (1975) Smith v. Lewis 13 Cal. 3d. 349 Review secondary sources, including law reviews, Restatements, treatises and court documents that have discussed or interpreted your case. Review secondary sources, including law reviews, Restatements, treatises and court documents that have discussed or interpreted your case. How have legal scholars regarded your case? How have legal scholars regarded your case?

20. Customize Your Report Limit Your Shepard’s Report by: Treatment FOCUS Feature Smith v. Lewis 13 Cal. 3d. 349 Smith v. Lewis 13 Cal. 3d. 349 (1975) Smith v. Lewis 13 Cal. 3d. 349

21. Treatment –All Neg: Displays citing cases that have overruled, reversed, questioned, distinguished, criticized, or limited the case your are Shepardizing for at least one point of law. –All Pos: Displays citing cases that have affirmed or followed the case’s legal reasoning.

22. FOCUS Feature Limit your report and narrow your results by: Jurisdiction: display only those citing references from one or more jurisdictions Search Terms: display only those citing references in which a particular term or search string appears Date Range: display only those citing references published during a specific date range Headnote(s) : display only those citing references that contain a specific headnote(s). –Allows you to retrieve citing cases that include discussion of a specific legal issue/application of a particular point of law. Click “Apply” to generate the FOCUSed report

23. Focus Feature cont’d.

24. FOCUSing by Headnote Zero in on relevant cases quickly by limiting your Shepard’s report to cases that contain a specific headnote A headnote is a brief summary of a particular point of law that is added to the text of a court decision to aid readers in interpreting the highlights of an opinion. Smith v. Lewis 13 Cal. 3d. 349 Smith v. Lewis 13 Cal. 3d. 349 (1975) Smith v. Lewis 13 Cal. 3d. 349

26. Shepard’s Table of Authorties (TOA) Cases relied on by the case you Shepardized, organized by jurisdiction –Discover hidden weaknesses in your case

27. View Full-Text of Citation View the full-text of the citation you Shepardized or any citing reference in your Shepard’s report by clicking on the hyperlinked citation. Select the documents for print or email delivery Smith v. Lewis 13 Cal. 3d. 349 Smith v. Lewis 13 Cal. 3d. 349 (1975) Smith v. Lewis 13 Cal. 3d. 349

28. Methods of Delivery Print Delivery: -Select the printer icon to print the Shepard’s report or the full- text of your original citation or one or more citing references -Generate a PDF document by selecting Adobe PDF for Attached Printer -Click the printer icon located at the top of the PDF document Email Delivery: -Click the letter icon to email Shepard’s report or the full-text of your original citation or citing references -Type your email address in the “To” box and add a “Subject” -Send attachment as a Word, Word Perfect, or PDF document

29. Shepardizing Statutes Shepardizing a code section yields information about its legislative history and citing references, including citing decisions and secondary sources Elements of a Shepard’s Report for Statutes : Shepard’s Summary Legislative History Citing Decisions Other Sources

30. Let’s Shepardize! 29 U.S.C. sec. 2612

31. Shepard’s Summary for Statutes Shepard’s Signal Indicator: Lexis editors have assigned to the citation based on treatment by citing authorities Pending Legislation: Pending Legislation: indicates that a bill pending in the legislature proposes to amend, repeal, or enact a change to the code section you are Shepardizing Hyperlinks to Citing References: - Citing cases: organized by analysis type - Other sources: law reviews, secondary sources, statutes, treatises, court documents 29 U.S.C. sec. 2612

32. Legislative History The report’s “History” section lists statutes that have added, amended, superseded or repealed the Shepardized code section. Click the hyperlinks to read the full-text of the public law or Statutes at Large citation The report’s “Pending Legislation” section lists bills pending in the legislature proposing to amend, repeal, or enact a change to the code section you are Shepardizing

33. Citing Decisions Determine how your code section has been applied or interpreted by the courts. Organized by court, full case citations given along with pinpoint citations to where the citing decision references the Shepardized code section. – – Warning Analyses: Unconstitutional, Invalid, Void – – Positive Analyses: Constitutional, Valid, Followed – – Neutral Analyses: Construes, Interprets, Questionable Precedent, Dissenting Opinion 29 U.S.C. sec. 2612

34. Other Sources Review non-case authorities that have cited your code section, including other statutes, regulations, court documents, and law review articles 29 U.S.C. sec. 2612

35. HAVE FUN SHEPARDIZING! ASK REFERENCE LIBRARIANS FOR ASSISTANCE!

36. Using Shepard’s and KeyCite in the Law Library Researchers use West’s KeyCite® to verify instantly whether a case, statute, administrative decision or regulation is good law, and to find additional (citing) references to support and strengthen a legal argument. Similar to Shepard’s, Westlaw shares many of the same features but has enhancements not available on Shepard’s. Shepard’s also has features not available on Westlaw. KeyCite features will be discussed in detail in the following presentation. What is KeyCite?

37. What does KeyCite cover? Case law Statutory citations Regulations Constitutional provisions Court rules U.S. patents

38. Accessing KeyCite Choose a case from a list of cases resulting from a search on Westlaw. “Find” a citation on Westlaw. The library does not have a separate contract with KeyCite. It comes “bundled” with our Westlaw subscription. So, instead of going directly into KeyCite, there are two ways in which to access KeyCite.

39. How to KeyCite a Document

40. Elements of a KeyCite Report KeyCite Signal KeyCite Summary

41. KeyCite Signals Demystified While in a KeyCite report, you can click on the icon itself, to see the icon defined. For instance, if you see a blue H, but can’t remember what it stands for click on it to see the explanation.

42. History of the Case Full history includes: Direct history - Traces your case through the appellate process and includes both prior and subsequent history Direct history graphical view Negative citing references – Lists cases outside the direct appellate line that may have a negative impact on your case.

43. History of the Case Full history continued: Related references – Lists cases that involve the same parties and facts as your case, whether or not the legal issues are the same Case history also includes links to court related documents, such as briefs, petitions, motions, and transcripts of oral arguments

44. Full History

45. Full History - Graphical View

46. Citing References

47. Limit KeyCite Display

48. Limit by - List

49. Headnotes Every legal issues in a case published By West is identified and summarized in a headnote. Each headnote is classified under one or more topics and key numbers in the in the West Key Number System. Each topic and key number represents a particular point of law.

50. Limit by Headnote(s)

51. Limit by Jurisdiction

52. Limit by Locate

53. Limit by Date

54. Limit by Document Type

55. Depth of Treatment Stars and Quotations

56. Limit by Depth of Treatment Stars

57. Depth of Treatment Stars

58. Quotations Quotation marks indicate that the citing case, administrative decision or brief directly quotes the cited reference.