Is it still good law?

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Bianca AndersonLibrarian Associate ProfessorMiami Law Library

Using KeyCite and Shepard's

Is it still good law?

Presentation materials can be found at https://law-miami.libguides.com/Bianca_Anderson

Validate Cases in Lexis

Validate Statutes in Westlaw

Validate Cases in Westlaw

Validate Statutes in Lexis

Why validate?

Index

01 Why validate?

Secondary Sources

Consult

Primary Sources

Read and Analyze

Validate

Is it still good law?

Process of Legal Research

• Occasionally, courts will overrule or modify prior case law to meets the needs of a changing society.
• Statutes also undergo many changes, as they are frequently amended, repealed, or given new meaning by court interpretation.
• Your research is never complete until you verify that your primary sources are still good law.

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Secondary Sources

Consult

Primary Sources

Read and Analyze

Validate

Is it still good law?

Process of Legal Research

Our legal system places great value the concept of stare decisis, so that precedent from a previous legal case that is either binding or persuasive for a court when deciding subsequent cases with similar issues or facts. Occasionally, courts will overrule or modify prior case law to meets the needs of a changing society. Statutes also undergo many changes, as they are commingly amended, repealed, or given new meaning by court interpretation. Sometimes statutes are declared unconstitutional and unenforceable. Your research is never complete until you verify that your primary sources are still good law.

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Failing to properly validate your legal authorities at best may lead to an embarassing scolding from a judge, but at worst may lead to malpractice and sanctions.

Why is this imporant?

Horaitis v. Mazur, 2004 WL 524437 at *1 (N.D. Ill. 2004)

" [I]f they did not know better to begin with, they should have learned better by the simple act of Shepardizing ... (as every laywer should do before citing any case) .... "

Meadowbrook LLC v. Flower, 959 P.2d 115, 120 (Utah 1998)

" Shepardizing a case is fundamental to legal research and can be completed in a matter of minutes."

Cimino v. Yale Univ., 638 F. Supp. 952, 959 n.7 (D. Conn. 1986)

" Counsel is admonished that diligent research, which includes Shepardizing cases, is a professional responsibility."

Gosnell v. Rentokil, 175 F.R.D. 508, 510 n.1 (N.D. Ill. 1997)

" It is really inexcusable for any lawyer to fail, as a matter of routine, to Shepardize all cited cases (a process that has been made much simpler today than it was in the past, given the facility for doing so ... "

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What can citators do?

ExpandCitators will also lead you to other authorities on the same subject using a legal authority you already have, such as other primary sources, law review articles and secondary sources.

ValidateCitators validate the legal authority you are using and confirm whether it is good law before you rely on it. A citator will also inform you if courts have discussed, applied or criticized the legal authority you are researching.

Westlaw

02 Validate cases

Texas v. Johnson, 491 U.S. 397 (1989)

1. Flag that lets you see at a glance the status of the source.
2. The case that gave the most negative treatment to your case
3. A flag description chart can be obtained by clicking the KeyCite logo.
4. Set alerts to monitor your case.

Contains those cases that have negatively referenced your case in some way.

Negative Treatment Tab

Negative Treatment Tab

• The treatment and depth indicators give you an idea of how the case listed affects your case.
• The Negative Treatment tab does not allow you to filter or sort by jurisdiction. The Citing References tab would be a better choice for that function.

This navigation is the same in the citing references tab.

1. Click these arrows to navigate through this case to find the references to the case you are validating.
2. Click this arrow to get back to the negative treatment menu for the case you are validating.

Contains those materials and cases that have referenced your case in any way. You can use this tab to both expand and validate your case.

Citing References Tab

Citing References Tab

1. Choose the type of citing reference you want to look at.
2. Once you choose a type of sorting reference, filters appropriate to that type of reference appear, including an option to filter by negative treatment that will then allow you to filter by jurisdiction.

Contains briefs, records, motions, etc. available on the database for the case. These are a good source for additional primary sources.

Filings Tab

Contains the direct prior and subsequent history for a case. If available on the databse, you'll be able to view trial court opinions, and any subsquent appeals, including grants or denials of certiorari.

History Tab

Contains all cases cited by the case that you are viewing. 1. Click the page number to go to the reference in the case opinion. 2. Click the case title to read the referenced case.

Table of Authorities

Lexis

03 Validate cases

Texas v. Johnson, 491 U.S. 397 (1989)

1. Signal that lets you see at a glance the status of the source.
2. Click here to Shepardize the case and obtain citing references, including cases, secondary sources, and any negative treatment.
3. A flag description chart can be obtained by clicking the KeyCite logo.

Citing Decisions Tab

1. Decisions with negative treatment
2. Decisions with positive or neutral treatment
3. Set alerts to monitor your case.
4. Phrase level indicator previews how the referencing case treats your case.

Scroll Down on Citing Decisions Tab

Citing Decisions Tab

1. Depth of treatment filter. You will also see these indicators on some of the citing decisions.

Citing Decisions Tab

1. When you click on a case in the citing deicisons tab, the database will automatically jump to the first case reference for your case.
2. You can navigate to the other references with these arrows.

Appellate History Tab

Contains the direct prior and subsequent history for a case. If available on the databse, you'll be able to view trial court opinions, and any subsquent appeals, including grants or denials of certiorari.

Other Citing Sources

Contains other materials besides court decisions that reference your case, such as secondary sources, court documents, and statutes.

Table of Authorities

Contains all cases cited by the case that you are viewing. 1. Click the page number to go to the reference in the case opinion. 2. Click the case title to read the referenced case..

Lexis

04 Validate statutes

29 USC §623

1. View previous versions of the statute
2. If a statute has pending legislation that may affect the statute it will be indicated here.
3. This Shepard indicator shows that there is some negative treatment of the statute by court's.
4. Toggle this to see the sections affected.

Citing Decisions Tab

1. Decisions with negative treatment
2. Decisions with positive or neutral treatment
3. Set alerts to monitor your statute.
4. Phrase level indicator previews how the referencing case treats your statute.
5. View pending legislation
6. View Citing Decisions by specific statute subsection

History Tab

This section list the initial session law enacting the statute, and all subsequent session laws amending the statute. If the text is available in the database it is hyperlinked.

Other Citing Sources

Contains other materials besides court decisions that reference your statute, such as secondary sources, court documents, and regulations.

Westlaw

05 Validate statutes

29 USC §623

1. Source status flag
2. Case that gives your statute the most negative treatment, as well as flag is there is pending legislation
3. A flag description chart can be obtained by clicking the KeyCite logo.
4. Set alerts to monitor your case.

Notes of Decisions organized by topic, which are written by West attorney-editors and summarize points of law from selected cases that construe or apply the statute.

Notes of Decisions

1. Pending legislation and any cases which limits the applicability of the statute or other negative treatment.
2. These tabs allow you to view, track and compare the statute as it has been amended over time.
3. These tabs contain materials useful for legislative history context.

History Tab

Citing References Tab

1. Choose the type of citing reference you want to look at.
2. Once you choose a type of sorting reference, filters appropriate to that type of reference appear, including an option to filter by jurisdiction.

Links to other related materials that may not directly cite to your statute, such as cross references and various, secondary sources, like law review and journal commentaries.

Context and Analysis

Thanks for your attention!