Oregon State Bar Bulletin — APRIL 2003

LEGAL PRACTICE TIPS
THE RIGHT CITE
Why in the world are you still using Shepard’s in print?
By Patrick Charles

As a reference librarian and legal research instructor at Creighton University School of Law in Omaha, Neb., I have the somewhat difficult task of teaching first-year law students how to use citators. This entails teaching them how to use Shepard’s in print as well as the online version of Shepard’s on Lexis and KeyCite on Westlaw.

Teaching the print version of Shepard’s is always a challenge. Any discussion of citators includes reasons for Shepardizing (to determine the history and treatment of a case) as well as how to Shepardize (the mechanical act of using the books). With the advent of Shepard’s on Lexis and KeyCite on Westlaw,1 legal researchers now have access to more powerful and efficient tools. Additionally, Shepard’s on Lexis and KeyCite on Westlaw are infinitely easier to use than the cumbersome Shepard’s in print.

Why Does One Shepardize a Case?
Case verification is the main reason one would Shepardize a case. Case verification allows the researcher to examine: 1) the history of a case and 2) the treatment of a case. Case history citations are those citations indicating prior or subsequent proceedings in the same case. If a case has been reversed on appeal, it generally cannot be cited as authority. Whether a case has been reversed is the most important aspect of history in a case. The treatment of a case is how other courts have evaluated the cited case as precedent for other cases. The precedential value for any given case depends to a large extent on the assessment of the case by other courts, and these assessments can be of vital importance in determining the present value of the cited case as authority. Whether a case has been overruled is the most important aspect of treatment in a case.

Another reason one would Shepardize a case is to find other cases that discuss the case. Shepardizing a case is a form of legal research that is just as viable a method as using a digest, law review article or legal treatise. As most should recall from Legal Research class in law school, law review articles and legal treatises are useful secondary sources, because they explain the law and they also cite to primary materials via extensive footnotes or endnotes.

Using Shepard’s in Print
Shepardizing in print is a very mechanical act. It essentially involves six steps:

Step 1, selecting the right citator: Finding the right citator entails using the citator that corresponds to the type of reporter that you are using. For example, if you were going to Shepardize a Pacific Reporter case, you would use the Shepard’s Pacific Reporter Citations.

Step 2, checking the currentness and completeness of the citator: This involves making sure you have a complete set of Shepard’s Citations. The way to check this is to locate the most recent Shepard’s softbound supplement and look at the cover in the section called 'What Your Library Should Contain.' This lists all the hardbound volumes, hardbound supplements and the softbound supplements needed in order to have complete coverage. It is important that one must start with the oldest hardbound volume and then work forward.

Step 3, understanding the citator: The next step is to understand the citator that you are using. This includes understanding the abbreviations for all the treatment and history codes. One should always read the first pages of the main volumes to understand how a Shepard’s citator works.

Step 4, finding your citation: Finding your citation entails looking up the volume number and the page number of your citation. After finding your citation, it is important to remember that when a case is cited for the first time in a Shepard’s citator, it includes the case name and any parallel citations to the case. History citations immediately follow the parallel citations, and that is followed by treatment citations. With the history and treatment, Shepard’s assigns history and treatment codes to the left of those citations. Shepard’s also includes citations to secondary sources at end of the case.

Step 5, interpreting your case information: The next step is to interpret your case citation information. This is the whole reason for Shepardizing; this is where you determine whether your case is good law or bad law. Bad law is a case that has either been reversed or overruled.

Step 6, updating: The final step is the process of updating. This entails looking at all the subsequent Shepard’s publications for the citator (including any hardbound volumes, hardbound supplements and the softbound supplements). After all these steps are completed, one is done Shepardizing a case. This is a rather cumbersome process, and when all is said and done, the materials are still generally several months out of date.

Electronic Citators
Shepard’s on Lexis and KeyCite on Westlaw are more efficient and easier to use than Shepard’s in print. Both are easier to use than the print version of Shepard’s because each involves simply plugging in the citation — on Shepard’s on Lexis or KeyCite on Westlaw — and clicking the mouse.

Shepard’s on Lexis does give the user the option of using Shepard’s for Validation or Shepard’s for Research. Shepard’s for Validation allows the user to view subsequent appellate history and citing references with analysis for that case. This provides the user with a more condensed answer set, because the user can quickly determine the continuing validity of the case. Shepard’s for Research allows the user to look at prior and subsequent appellate history and all citing references for the case. This provides the user with a comprehensive list of documents that are potentially related to the issue the user is researching.

KeyCite on Westlaw is similar to Shepard’s on Lexis in that it enables the user to access KeyCite 'History' and KeyCite 'Citing References.' KeyCite History is similar to Shepard’s for Validation in that it looks at the history (appellate history) of a case and the indirect negative history (the negative treatment) of the case to determine whether the case is still good law. KeyCite on Westlaw also enables the user to access KeyCite Citing References, which gives all the legal documents that have cited the user’s case. These legal documents include cases, administrative materials, treatises, law review articles and other secondary sources. This is similar to Shepard’s for Research in that it gives the user cases, administrative materials and secondary sources that have cited that case. In addition, it gives the user negative and positive treatment of the case.

KeyCite on Westlaw utilizes depth of treatment stars that indicate how extensively a cited case has been discussed by the citing case. Four stars mean that the case has been 'examined,' which translates into an extended discussion of the cited case, usually more than a printed page of text. Three stars mean that the case has been 'discussed,' which translates into a substantial discussion of the cited case, usually more than a paragraph. Two stars mean that the case has been 'cited,' which translates into some discussion of the cited case, usually less than a paragraph. And one star means that the case has been 'mentioned,' which translates into a brief reference to the cited cases, usually in a string citation.

Advantages of Using Electronic Citators
Shepard’s on Lexis and KeyCite on Westlaw are superior to Shepard’s in print for a variety of reasons:

1. KeyCite on Westlaw and Shepard’s on Lexis are one-stop shopping. Everything is on one or two screens, and there is no need to look through multiple hardbound volumes and supplements of Shepard’s in print. Both online citators lay out the information on one or two easy-to- read screens.

2. KeyCite on Westlaw and Shepard’s on Lexis are in plain English. There are no history or treatment codes that need to be deciphered using the case analysis table. Reading Shepard’s in print is like reading the stock market pages in the Wall Street Journal. Both KeyCite on Westlaw and Shepard’s on Lexis are very easy to read and they give the history and treatment assignments as words, rather than codes.

3. KeyCite on Westlaw and Shepard’s on Lexis are easily customizable. A user may select the display, customize restrictions and choose default options based on individual needs. For example: if one were to see how courts have treated Roe v. Wade on Shepard’s on Lexis or KeyCite on Westlaw, one would retrieve approximately 11,065 citations to cases, statutes and secondary sources which have cited Roe v. Wade. Obviously, this is an enormous amount of material to go through. Shepard’s on Lexis and KeyCite on Westlaw allow the user to limit by jurisdiction, materials (cases, statutes, secondary sources, etc.), depth of treatment (if Roe v. Wade has been cited in a mere string citation, the services have the ability to discard those cases) and positive treatment or negative treatment. In addition, both services allow a user to perform a keyword search of all the documents in the results by using the 'Focus' and 'Locate' features.

4. Shepard’s on Lexis and KeyCite on Westlaw are cost effective.2 In today’s market, there are many ways that Westlaw and Lexis are charged. Law firm subscription agreements to either Westlaw or Lexis can be based on flat rates, transactional pricing or hourly pricing. Alone, KeyCite on Westlaw accessed via the Internet costs $4.25 per KeyCite on Westlaw result. Shepard’s on Lexis also charges $4.00 per Shepard’s on Lexis result. You can purchase unlimited access to Shepard’s on Lexis for $93.00 per month and KeyCite on Westlaw for $250.00 per month. In comparison, Shepard’s in print can be very pricey; the subscription rate may run upwards of $900 annually per Shepard’s title. Another factor to consider is that it does cost money to house and maintain each set of Shepard’s in print.

5. Finally and most importantly, Shepard’s on Lexis and KeyCite on Westlaw are much more current than Shepard’s in print, as shown by the following examples.

As of the writing of this article, the most recent supplement to the Shepard’s Pacific Reporter Citations in print was dated November 2002 (Vol. 95 No. 11). However, this does not mean that it contains cases up to Oct. 31, 2002; rather, it was simply released in November of 2002. By examining the contents, it contains Oregon Court of Appeals opinions current through State v. Swibies, 183 Or App 460, 53 P.3d 447 (2002), which was decided on August 28, 2002. This case was first published in the 2002, No. 19 Oregon Appellate Reports Advance Sheet. One of the most recent Oregon Supreme Court opinions was Dearborn v. Real Estate Agency, 334 Or 493, 53 P.3d 436 (2002), which was decided on Sept. 6, 2002. This case was first published in the 2002, No. 20 Oregon Advance Sheet. This shows that the latest supplement to the Shepard’s Pacific Reporter Citations was off by almost three months!

The author Shepardized Swibies in the November 2002 Shepard’s Pacific Reporter Citations, and there were no citing references other than the parallel citation for that case. The author also Shepardized Swibies on Lexis and retrieved one subsequent Oregon Court of Appeals opinion that cited Swibies. The author also KeyCited Swibies on Westlaw and found one subsequent Oregon Court of Appeals opinion that cited Swibies. The Oregon Court of Appeals opinion that both online citators retrieved was State v. Wiggins, 184 Or App 333, 56 P.3d 436 (2002), which was an Oct.16, 2002 opinion. Both online citators characterize Wiggins as not having a negative impact on Swibies. Using the print version of Shepard’s Pacific Reporter Citations would have missed this case.

The author also Shepardized Dearborn in the November 2002 Shepard’s Pacific Reporter Citations and found a subsequent case which had followed Dearborn; however, the print version of Shepard’s only provided a Lexis number for the citation to the opinion. This Lexis number for the citation was 2002 Ore App LX 1560. The print user would have to access Lexis in order locate the citation to this case. The author also Shepardized Dearborn on Shepard’s on Lexis and found two different things. First, the petition for reconsideration on Dearborn was denied by the Oregon Supreme Court on Dec. 3, 2002, information that was not available in the November 2002 Shepard’s Pacific Reporter Citations. Additionally, Dearborn was cited in a subsequent case, the same case that was alluded to in the Shepard’s in print but only cited to with the Lexis number. Shepard’s online provides the full citations to the print reporters. The author also used KeyCite on Westlaw and found the full citations for the case that cited Dearborn. Interestingly, KeyCite did not include the information that the petition for reconsideration on Dearborn was denied by the Oregon Supreme Court on Dec. 3, 2002. Both Shepard’s on Lexis and KeyCite on Westlaw provided the citation to the subsequent case that cited Dearborn, an Oct. 9, 2002 opinion entitled Kerley v. Real Estate Agency, 184 Or App163, 55 P.3d 549 (2002). Thus, in this case, using the print version of Shepard’s would have missed potentially important information about Dearborn.

Perhaps the greatest contrast between using books versus online citators is that Shepard’s in print could fail to discuss in a timely manner whether a prior case has been overruled. For example, the Oregon Supreme Court in Roberts v. Mitchell Bros. Truck Lines, 289 Or 119, 611 P.2d 297 (1980), held that '…that a requested instruction must ‘clearly and directly’ call to the trial court’s attention its error in failing to give that instruction.' On Dec. 7, 2001, the Oregon Supreme Court partially overruled Roberts in Beall Transport Equipment Company v. Southern Pacific Transportation Company, 335 Or 130, 60 P.3d 530 (2002). In Beall, the Oregon Supreme Court held that '…we acknowledge and now disavow the suggestion in Roberts that a requested instruction must ‘clearly and directly’ call to the trial court’s attention its error in failing to give that instruction.' Both KeyCite on Westlaw and Shepard’s on Lexis had this negative analysis available within 7 days of the issuance of Beall. It would have been months before Shepard’s in print would have made this analysis readily available.

It is also worth mentioning that the print version of Shepard’s has the Shepard’s Daily Updates that allows customers via Internet connection to access the latest update information for any particular citation. The updates are normally available within two to three days after opinions are obtained, the same as Shepard’s on Lexis. This service is free to Shepard’s in print subscribers. On the downside, this is another step in the Shepardizing process when using the books.

For Shepard’s on Lexis and KeyCite on Westlaw, both services claim to have the treatment and history of a case available at different times. Shepard’s on Lexis claims to have negative analysis within 2-3 days. KeyCite on Westlaw claims to have negative analysis within 7-9 days. Obviously, both are much better than 2-3 months.

Conclusion
When using a citator to determine the validity of a case, one should use either Shepard’s on Lexis or KeyCite on Westlaw. One should avoid using the Shepard’s in print because it is generally out of date, cumbersome and the wrong tool to use.

Endnotes

1. In 1997, Reed Elsevier, which owns Lexis-Nexis, acquired the Shepard’s from Shepard’s/McGraw-Hill Inc.

Anticipating the termination of its licensing agreement after the purchase of Shepard’s by its competitor, Westlaw created its own online citator, KeyCite on Westlaw. The following year, Reed Elsevier announced that it would end its licensing agreement with Westlaw and no longer allow Shepard’s to appear on Westlaw. For all practical purposes, Shepard’s on Lexis and KeyCite on Westlaw accomplish the same thing: they both tell you whether your case is good law or bad law. I view them as the legal research equivalent of the 'Coke v. Pepsi' soft-drink battle.

2. To access Shepard’s on Lexis on the web, go to http://wwwshepards.com. To access KeyCite on Westlaw on the web, go to: http://creditcard.westlaw.com.

OSB member Patrick Charles is a reference librarian and legal research instructor at Creighton University School of Law in Omaha, Neb. A version of this article originally appeared in the February 2002 Nebraska Lawyer Magazine and is reprinted with permission of the author.

© 2003 Patrick Charles


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