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As a lawyer or law student, any time you cite a case in support of a legal argument, you must check whether its authority has changed as a result of more recent decisions. The process by which one determines whether a case is still good law is called "Shepardizing." It is named after Frank Shepard, a 19th century legal publisher who developed a system for indexing all of the citations that reference a particular case. Traditionally, this process required a thorough review of published volumes and supplements in search of references to a single case. However, today, most lawyers and law students prefer the ease of Shepardizing their cases automatically through online subscription-based databases, like LexisNexis or Westlaw.
Steps
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Select the online database to which you have access. LexisNexis and Westlaw are the primary online databases used by lawyers and law students for conducting legal research. Both are equally useful for Shepardizing cases, though subscribing to either service as an individual consumer can be prohibitively expensive. For this reason, most lawyers and law students use the one to which they have free access through their law school or employer.
- As a law student, you will likely be given free access to both LexisNexis and Westlaw through your law school. Try to get familiar with both of them, as you may have access to only one once you begin working. [1] X Research source
- If you do not have access to either LexisNexis or Westlaw, look into cheaper online legal research databases, like Loislaw, FastCase, Casemaker and Bloomberg Law. These databases offer fewer search tools than LexisNexis and Westlaw, but do provide Shepardizing functions. [2] X Research source
- Be wary of free online legal research databases, such as Google Scholar, which while useful for basic case search, are still not considered reliable for Shepardizing cases.
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Use Shepard's by LexisNexis to locate cases that have referenced your case. When you Shepardize a case using Shepard's by LexisNexis, the database automatically produces a report showing every opinion in which your case has been referenced with a symbol that highlights any negative treatment. [3] X Research source
- Log on to LexisNexis by entering your online ID and password. If you are a law student, you can access the site by opening: https://signin.lexisnexis.com/lnaccess/app/signin/aci/ls .
- Look up your case by entering the citation (including volume, reporter designation and page number) within the main search box.
- Open the full text view of the case.
- Use the "Next Steps" dropdown box at the top right of the case to select "Shepardize" or click on the Shepard's Signal on the top left.
- Review the Shepard’s report automatically produced in response to your query. This report contains a list of the cases that have cited your case. The Shepard's Signal Marker will indicate to you how other cases have treated your case.
- Identify whether there has been any negative treatment of your case. The Shepard's Signal Marker will highlight any negative treatment of your case by displaying either a red warning sign, a yellow caution sign or an orange box with the letter “Q” in it.
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Use WestLaw's KeyCite function to locate cases that have referenced your case. When you Shepardize a case using WestLaw's KeyCite, the database automatically produces a report showing every opinion in which your case has been referenced with a symbol that highlights any negative treatment. [4] X Research source
- Log on to Westlaw by entering your online ID and password. If you are a law student, you can access this site by opening: https://signon.thomsonreuters.com/?productid=LSC&returnto=https%3a%2f%2flawschool.westlaw.com%2fauthentication%2ftoken%3ffwdURL%3d%252fdesktopdefault.aspx&bhcp=1
- Look up your case by entering the citation (including volume, reporter designation and page number) within the "Find by Citation" text box. [5] X Research source
- Once the full text of the case appears, click on "History" or "Citing References" on the Links tab in the left frame or click on the KeyCite status flag, if available.
- Review the KeyCite report automatically produced in response to your query. This report contains a list of the cases that have cited your case. The KeyCite status flag will indicate to you how other cases have treated your case.
- Identify whether there has been any negative treatment of your case. The KeyCite status flag will highlight any negative treatment of your case by displaying either a red or yellow flag.
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Read the cases identified through your search. Your online search will yield a list of cases in which courts have referenced your case with symbols showing whether there has been any negative treatment. Click on the citations for any cases that display negative treatment and read them carefully.
- As you read each case, consider how the court's analysis and holding affect the law in your case.
- If the proposition for which you had hoped to cite your case is no longer valid given the analysis and holding in the more recent case, you will not be able to use it in support of your argument. In that scenario, you will need to start over with your legal search and find a new case that supports your argument.
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Obtain the correct citation for the case you wish to Shepardize. [6] X Research source
- The correct citation includes the reporter, volume and page number.
- You will also need the year it was decided.
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Locate the set of Shepard's Citations that matches your case’s reporter. [7] X Research source
- For example, if your case is from the Pacific Reporter, you will need to locate the set of Shepard's Citations that corresponds to the Pacific Reporter.
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Gather all of the volumes necessary to Shepardize your case. Once you have the set of Shepard's Citations that matches your case's reporter, you will need to identify which volumes within the set are necessary for Shepardizing your case. [8] X Research source
- Within your set of Shepard's Citations, look for the most current softbound supplement.
- The front cover of this supplement will contain a list entitled "What Your Library Should Contain." This is the complete list of volumes and supplements you will need to review in order to Shepardize your case.
- Gather all of the volumes and soft-cover supplements in this list, from the most recent all the way back to the date your case was decided.
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Check each of the volumes and supplements gathered for references to your case. [9] X Research source
- Begin with the most recent volume or supplement on the list.
- Scan the pages of the particular volume or supplement in search of the reporter, volume number and initial page number that correspond to your case. The reporter and volume number appear at the top of each page, with the reporter in the center and the volume number on the left. The initial page numbers are listed in order on each page.
- Once you have found the right page, the case name and decision date should appear next to the initial page number for your case. If you do not see your case, it means it is not referenced in that particular volume or supplement and you can move on to searching for it in the next one on your list.
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Identify the list of cases that have referenced your case. For each volume or supplement in which your case appears, you will find a list of citations and authorities that have cited your case. This list appears beneath the case name.
- At the top of the list, you may find citations in parenthesis. These are called parallel citations and indicate that your case has been cited in other reporters. You will need to Shepardize each of these citations to obtain a comprehensive result.
- After parallel citations, you will find a list of cases that have cited your case. This is the list of cases you will need to review to determine whether your case is still good law.
- At the end of the column of citations, you will find secondary authorities citing your case. They have no negative or positive effect on the authority of your case, but they will lead you to articles that could help you interpret your cases.
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Carefully review the list of cases that have cited your case for any negative history.
- The abbreviations next to the cases will alert you to whether your case has been reversed, overruled or denied. The full list of abbreviations can be found in the Table of Abbreviations in each volume of Shepard's.
- References to cases are organized by jurisdiction and court, with the highest court listed first. Be particularly wary of negative history by cases from higher courts as these decisions are binding on cases from lower courts.
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Read all cases with abbreviations that indicate negative treatment. If you find a case with an abbreviation that indicates the court reversed, overruled or denied your case, take note of the citation. You MUST look it up to determine how exactly the ruling affected the law in your case.
- Note that the citations are to the specific pages of other cases that have cited your case.
- Think carefully about the proposition of law for which you wish to cite the case and consider whether in fact the more recent case affected the validity of that particular proposition.
- If the proposition for which you had hoped to cite your case is no longer valid, you will not be able to use it in support of your argument. In that scenario, you will need to start over with your legal search and find a new case that supports your argument.
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Repeat this process for each bound volume and supplement listed in “What Your Library Should Contain.”
- Work in order from the most recent to the earliest reference.
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Complete the process by obtaining the most current information directly from the publisher. Even the most recent published supplement from Shepard's lacks coverages from the previous two months. [10] X Research source
- To learn whether any relevant cases have been decided during those two months, call the toll-free number on the back cover of the most recent Shepard’s supplement. A publisher’s representative will check for as-yet unpublished citations of your case.
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References
- ↑ https://alliant.libguides.com/c.php?g=692721&p=4907970
- ↑ https://lawlibraryguides.neu.edu/subscriptiondatabase
- ↑ https://nmsu.libguides.com/c.php?g=206101&p=8973158
- ↑ https://infoguides.wtamu.edu/busi3312/shepardizing
- ↑ https://lawschool.westlaw.com/marketing/display/RE/217
- ↑ https://guides.libraries.psu.edu/harrisburg/crimj420/shepardize
- ↑ https://guides.libraries.psu.edu/harrisburg/crimj420/shepardize
- ↑ https://guides.lib.jjay.cuny.edu/c.php?g=288378&p=1922492
- ↑ https://cerrocoso.libguides.com/pararesearch/shepardizing
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