Teacher’s Guide

Find More Authority with Shepard’s® Citation Service

AGENDA:

1. Review Shepard’s Citation Service

2. Why use Shepard’s as a Research Tool

3. How to find more primary law on your issue

4. How to find secondary sources related to your issue

5. Setting up a Shepard’s ALERT

6. Find more authority citing your statute

7. What else can I Shepardize®?

8. Summary

  1. REVIEW OF shepard’s citation service:

As you recall from our prior lesson, Shepard’s is a citator, a list of all the authorities citing a particular case, statute, or other legal authority and the associated “treatment” meaning how they reference the case in a positive, negative or neutral manner. Additionally, Shepard’s provides the appellate history of your case as it worked its way through the court system. The verb Shepardizing™ refers to the process of consulting Shepard's to see if a case has been overturned, reversed, questioned, followed, or simply cited by later cases. Available exclusively on LexisNexis®, Shepard’s serves two important purposes: (1) as a case validation tool to ensure your case is still good law; and (2) as a comprehensive finding tool to locate additional relevant authorities. Shepard’s content is very current (updated within 24 hours of decision), complete (provides you with the full range of editorial analyses – both positive and negative) and comprehensive (includes federal and state jurisdictions and published and unpublished opinions).

Today, we are going to focus on using Shepard’s as a research tool to find additional cases and secondary sources that address our legal issue.

TIP:see PowerPoint for slides addressing Agenda item 1; also this video clip from the 1995 OJ Simpson case has been a popular way to introduce the importance of Shepardizing™ generally.

  1. Why USE ShEPARD’s AS A RESEARCH TOOL

Shepard’s is one of the most efficient ways to find additional authority once you’ve located a relevant case or statute. When finding authority to support your argument, ideally, you want to cite to recent, higher court opinions on point. Since the Shepard’s report already compiles a list of cases that cite your key case or statute, those cases are more recent. You also save time by reviewing the list of cases and narrowing those citing references to the most relevant cases by a variety of applicable factors like Jurisdiction and Headnote. In a commercial setting, it’s also one of the most cost effective tools available. Shepard’s is typically included in Lexis subscription pricing plans.

  1. How to FIND MORE PRIMARY LAW ON YOUR ISSUE

Sample Shepard’s Assignment: You have been asked to “update the law” on a claim for front pay in an age discrimination case. For the purposes of this exercise, McNeil v. Economics Laboratory, 800 F2d 111 is relevant to our issue of front pay. The attorney you are working with has used this case in the past to support this claim. You need to find additional cases in your jurisdiction (7th Circuit) that support this claim as well as any secondary sources that will help you better understand the issue and also provide additional authority.

  • From the Search Box: Log into Lexis Advance™. In the red search box, enter your case citation preceded by Shep: (i.e. shep: 800 F2d 111)
  • From a Document: While viewing a case on Lexis Advance, click the Shepard’s Signal™ or Shepardize® button

Retrieve Shepard’s report for case: In the red search box, enter shep:800 F2d 111. Let’s assume we’ve read the case and identified Headnotes 14 and 16 as relevant. We also noticed the red stop sign and Shepardized™the case to ensure it is still good law for our purposes related to a claim for front pay (Refer to Lesson Plan “Be Sure Your Cases are Good Law with Shepard’s”). We’re going to assume that we determined the “front pay” issues we are interestedin are still good law. Now, we are going to use information in the Shepard’s report to find more authority on our issue.

Find more Cases on point:

  • Remember, your Shepard’s report is divided into three “categories” represented by tabs at the top of the report.
  • Appellate History provides the events in the litigation chain of your case, so you can follow its path through the court system.
  • Citing Decisions lists the cases that have cited to your case and how they treated your case.
  • Citing Law Reviews, Treatises, etc… lists law review articles, treatises, statutes, court documents (briefs, pleading, motions), restatements and other secondary sources that have cited to your case.
  • Citing Decisions tab
    Citing cases are arranged by jurisdiction, starting with the “home” jurisdiction, then highest court to lowest court. So, if you Shepardize a Florida state case, the Florida citing cases will be first, followed by US Supreme Court, the Circuits (Court of Appeals and District Courts) then the rest of the states alphabetically. Notice the total number of citing decisions.
  • Narrow By filters: These are extremely helpful in providing a breakdown of the report and are customized to the particular report you are viewing.
  • Analysis filter is based on signal values (Warning, Questioned, Caution, Positive, Neutral, and “Cited by”). You can filter by individual treatments or select multiple options. You can also see the number of cases that “treat” your case in this manner.
  • Court filter allows you to choose the jurisdiction(s) you want to see.
  • Headnotes filter refers to the headnotes of the case you Shepardized™and allows you to zero in on those cases that cited your case in the context of a specific issue. View text of Headnotes link lets you see the text of the headnotes without having to go back to the document itself.
  • Terms within results allows you search the text of the citing cases using key terms.
  • Timeline filters the report by date.
  • Editorial phrases – assigned by the Shepard’s editors to reflect how the citing case treats your case. Note the little colored boxes next to the phrases above each case name in your citation list. This gives you a quick way to determine that a citing case treated yours very negatively (red) or mildly negative (yellow) or positively (green), for example.
  • Link to Citing Decisions - will open the citing case in a separate tab, position you at the first mention of your case. There is a tool, Navigate – References in the top tool bar to get to any subsequent mentions of your case in that document.
  • Pin Point page link opens the document in a separate tab, positions you at that point page.This is handy when a citing case has treated your case multiple ways and you want to get to the specific type of treatment.

a.Using Filters:Although you have a variety of Narrow By options to choose from, think about what is most relevant to us. We want to find cases in our jurisdiction that cite our good case in relation to the issue of front pay. Therefore, let’s select 7thCircuitas our jurisdiction. Under Headnotes, click “Select Multiple” and check HNs 14 and 16. This narrows our list of cases by over half. Notice in the Narrow By filters that some cases actually followed our case. This means the citing opinion relies on the case you are Shepardizing™ as controlling or persuasive authority. The Followed By treatment is a unique and valuable feature only available in Shepard’s.

We’ve now narrowed our results to approximately 5 cases. Look at the 7th Circuit case, Hybert v. Hearst Corp. You can save a lot of time by quickly linking directly to where the case is following McNeil on a particular point of law. Click link to page 1055. Click Back

*Note: The Delivery options are located on the top left corner of your citing decisions list. You cansave your refined list of cases (or specific documents in full) to a folder, email, download or print.

TIP: If you know the cases your opponent is relying upon, Shepardize those cases to find the cases that have distinguished themselves or that have criticized or questioned that case. Build your argument around those positions.

b.Citing Decisions Grid. Another option available is the Citing Decisions Grid. This will give you a visual depiction of your citing decisions if you prefer the graphical view. Go back to the Citing Decisions tab. Click on the Grid link. You have two Grids: Top Grid shows level of treatment versus jurisdiction, and the bottom Grid shows level of treatment over time.

  1. Clicking on a box will impose two filters (the intersection of the x and y axes). Quick way to narrow your report.
  2. Clicking on a column or row header will impose one filter.
  3. Grids are a good way to spot potential splits of authority.

TIP: Like McNeil case, most cases stand for more than one rule of law. Also, a red signal doesn’t necessarily mean your entire case has been overruled. There are two types of splits of authority. One, where you have a line of citing cases treating one holding in a negative manner,while a separate line of cases expressly follows a different holding in the case. The other type of split of authority is a jurisdictional split, where one jurisdiction overrules or otherwise negatively treats a case, while a different jurisdiction expressly follows it. Let’s take another look at the unfiltered Citing Decisions report in McNeil. Under Analysis, click Select Multiple and select both Warning options and Followed By. You will see cases that treat a holding in your case negatively and another positively. This is easy to see in the GRID view to get a quick visual of both green and red.The best example of demonstrating a split of authority is U.S. v. Lee, 22 F3d 736. Filter to Warning and click on the Howze case. It clearly describes a split of authority in the last paragraph.

  1. How TO FIND SECONDARY SOURCES RELATED TO YOUR ISSUE

Now let’s explore the third tab in your Shepard’sreport that contains other types of sources that cite our McNeil case. You will receive a list of all Statutes, Treatises, Law Reviews, Court Documents, Restatements and other sources that cite your case. Many of these sources will provide an overview of the topic, in-depth analysis of the issues and cite to seminal cases. You will gain a deeper understanding of the issue, where the courts typically stand, and related legal terminology.

Notice how the filters on the left are customized to the type of content we are viewing. In the Search within Results, type front pay. Scroll down to NOTE: Jury Computation of Front pay Under the Age Discrimination in Employment Act, 76 Minn. L. Rev. 985. Click back. In the filters on the left, click on Treatises. Click on 8-144 Employment Discrimination @ 144.04. In the navigation tool bar, click the right error to jump to each reference to the term front pay that is conveniently highlighted and in bold text.

TIP: Reviewing court documents including briefs, pleadings and motions that cite your case may lead you to other cases and uncover arguments/positions you haven’t thought of yet.

  1. Setting up a Shepard’s ALERT

This is a very popular feature and one you are likely to use in practice. If you are relying on a particular case or statute, you will want to be notified of any new cases, secondary sources… that cite it after today. Creating an ALERT will automatically notify you to any new authority decided that impacts your case positively, negatively etc… depending on the parameters you select when creating an ALERT.This feature will also inform you if the signal value of the case changes, or if there is recently enacted or pending legislation that impacts your statute section. Click on the tab that contains the Shepard’s report for McNeil. Click on the gold bell icon to the right of your delivery options. Complete the template and Save.

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  1. FIND MORE AUTHORITY CITING YOUR STATUTE

Sample Assignment: Your client, Tom Baylor, had a friend, Colin Bass temporarily living with him. His friend’s dog, a boxer named Brute, was also living at the residence. While a neighbor was out getting their mail, Brute got out of the house and bit the neighbor on the leg multiple times. Under Wisconsin’s “dog bite” statute, Wis Stat 174.02, who is liable for damages, the home owner or the house guest?

When you have the citation to the statute, the process for finding authority interpreting the statute in relation to your issue is relatively straight forward. You first retrieve and read the statute, locate the relevant sections, review case annotations, and Shepardize. Depending on the complexity of your issue, this process will lead you to potentially relevant authority.

  • In the red search box, enter Wis Stat 174.02. Read the statute. What sections address owner liability?

Tip: To view the surrounding code sections in this chapter, click on Table of Contents arrow in the top navigation bar.

  • Use the Jump To feature and click on Case Notes. This will take you directly to the topic index. You can view the list of topics, select the relevant topics and click the green link on the left to go directly to case annotations related to that topic. What looks like the most relevant topic? Click on the green arrow for Torts: Negligence: Duty: Animal Owners: Ownership . Note the Pawlowski v. Am. Family case.
  • It’s important to remember that case annotations are selected and only as current as stated in the top of the document (often several months old). To ensure you do not miss anything, you also need to Shepardize relevant statutes to see all cases citing your statute, including extremely recent decisions that are not reflected in the annotations.
  • Now, let’s Shepardize our Statute. Click the Shepardize button in the top navigation bar or the Shepard’sreport link in the About This Document on the right to retrieve the Shepard’s report. The tabs are slightly different including Legislative History, Citing Decisions and Citing Law Reviews, Treatises…. Click on Citing Decisions and review the Narrow By filtering options on the left. Select Wisconsin as your jurisdiction and in the Search within Results, let’s type dog and keeper. Cases are listed highest court to lowest court, most recent to latest.

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  1. WHAT ELSE CAN I SHEPARDIZE?

You can Shepardize several other types of legal documents including Law Review articles, Code of Federal Regulations, Patents…

  • In the red search box, enter shep: 76 Minn. L. Rev. 985. When you find a relevant Law Review on point, but it’s rather old, this is a great way to see if there are more recent Law Review articles on your topic. Click on Citing Law Reviews… tab.
  • In the red search box, enter shep:14 CFR 259.1. This is the regulation governing airline passenger safety related to lengthy tarmac delays. Click on Citing Decisions tab to view cases citing this recent regulation. Click on the Citing Law Reviews… tab to view any related secondary sources.
  1. Summary

Today, we’ve used Shepard’s to quickly find additional relevant cases and secondary sources related to the issue of “front pay” in the McNeil case. Remember, it’s the tools within your Shepard’s report that allow you to quickly hone in on the most relevant information i.e. filters, Grid, etc… We also learned the importance of Shepardizing statutes as well to receive the complete and most current cases interpreting your statute, in addition to the other types of legal documents you can Shepardize.

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