Researching Case Law
Kyle K. Courtney
Northeastern University Law
Plan for Today
 Overview of court hierarchy and authority
 Case law reporting/publication
 Publication patterns of case law
 Finding Cases
 Basic Citators
Where are we in the stages of a
Research Plan?
 familiarize yourself with the area of law –
secondary sources
 locate, read, and analyze primary authority
 make sure primary authority is good law –
cite check, validate, update
 when appropriate, locate additional primary
and secondary authorities
Reasons to Research Case Law
 Ethical duty to cite to mandatory authority
 Issue is covered by common law
 Issue is covered by statute, regulation, or
rule, but cases interpret and apply
Basic Court Structure
Three Tiers
Trial
Level
Appellate Level
Court of Last Resort
Other models, courts, etc.
Federal Court Structure
Typical Court Structure
LEVEL
FEDERAL
MASS.
Trial Court
District Courts
Superior Court
(e.g.,MA Dist.
Ct.)
Intermediate Courts of Appeal Mass. Appeals
Appellate
(e.g., 1st Cir.)
Court
Highest
Appellate
Supreme Court
Supreme
Judicial Court
State Court Models
 http://www.ncsconline.org/D_Research/
Ct_Struct/index.html
 Also: All Court information is available in
the Bluebook, T.1 or ALWD Appendix
Definition of Types of Opinions
 If there is more than one judge….
 Majority – opinion garners more than half the votes
and resolves the case
 Dissent – expresses the views of the judge(s) who
would have reached a different result in the case
 Concurrence – expresses the views of the judge(s)
who favor the majority’s results, but for different
reasons
 Plurality Opinion – no opinion garners over half of the
votes. The opinion garnering the largest number of
votes, the plurality, generally is the most influential
and resolves the dispute between the parties.
Which case is right for my research?
 Mandatory v. Persuasive
 Publication status (good law/current law )
 Factual similarity or quality of reasoning
 ** Always look to see how the case was
treated in subsequent decisions
Mandatory vs. Persuasive
 Mandatory authority means those primary
sources to which a court must conform its
decisions, including that jurisdiction’s
constitution, statutory code, administrative
regulations, and cases.
 Persuasive authority refers to any writing that
influences or is used to influence the
decisions of a court but is not binding upon it.
Mandatory vs. Persuasive
Stare Decisis is your friend!
 Stare decisis “dictates that once a court has
established a precedent in determining a
point of law, that court and courts of
subordinate rank in that jurisdiction will
subsequently conform their rulings to that
decision, so that similar questions are
resolved similarly.”
 It should be noted that while stare decisis is
“the foundation of the American legal
system,” it has sometimes been disregarded
in favor of compelling social arguments.
Publication Status
 27,000-28,000 decisions issued by federal
courts of appeal alone.
 Not every decision is published
 Highest % Published: Highest court in
fed/state systems
 Less % Published: Intermediate Appellate
Courts
 Least % Published: Trial Courts
What factors affect the decision
to publish?
 Decision likely to be published if:







Establishes a new legal rule
Develops/significantly explains existing rule
Criticizes or questions existing law
Resolves conflicting caselaw
Discusses little discussed rule
Applies old rule to a new situation
Significant public interest
However, even unpublished decisions
are published!





Westlaw/Lexis
Some print materials (West)
Certain courts
Are unpublished decisions precedential?
Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000). The
Eighth Circuit declared unconstitutional its local rule providing
that unpublished opinions do not have precedential effect.
 The court in Hart v. Massanari, 266 F.3d 1155, (9th Cir. 2001),
held that Ninth Circuit Rule 36-3, providing that unpublished
dispositions and orders of the Ninth Circuit are not binding
precedent, is constitutional, and disagreed with the holding of
Anastasoff.
 Know your local rules! (MA - Regulation of Appellate Practice
Rule I:28)
Supreme Court Decides (2006)
 Supreme Court says unpublished
opinions can be cited in federal courts
 Federal Rule of Appellate Procedure 32.1
 The new rule takes effect unless Congress
countermands it before Jan 1st, 2007.
 The new rule does not dictate the
precedential value that circuits can assign to
unpublished opinions, but attorneys will
always be allowed to cite them to the courts.
Publication Sequence of Opinions
 Slip opinions – The decision as issued by the
court


Print
Electronic (example U.S. Supreme Court)
 Advance sheets - paperback books collecting
several cases until bound volume is
published
 Bound reporters

Unofficial vs. Official
National Reporter System
 “National Reporter System” refers to all the West
case reporters – report cases from all 50 states
and all federal courts



7 regional reporters, e.g. North Eastern Reporter
30 state reporters, e.g. Massachusetts Decisions
various federal reporters
West's Reporter system is made up of
the following titles:
Federal
 Supreme Court
Reporter
 Federal Reporter-(Covering Circuit Courts
of Appeals)
 Federal Supplement-(Covering U.S. District
Courts)
 Federal Rules
Decisions
Regional
 Atlantic Reporter
 North Eastern Reporter
 North Western Reporter
 Pacific Reporter
 South Eastern Reporter
 South Western Reporter
 Southern Reporter
Reporters (Continued)
 Cases are published in reporters in
chronological arrangement by decision date.
OFFICIAL
UNOFFICIAL
Official Reporters contain only
the written opinion of the judge.
[Ex. Official reports of the
United States Supreme Court
are found in the United States
Reports, (U.S.) published by
the Government Printing Office
(GPO)].
Unofficial Reporters contain helpful
research aids (headnotes, etc.).
Because they are not published
under the authority of the state or
federal government they are
considered unofficial. [Ex. are the
Supreme Court Reporter (S.Ct.)
and United States Supreme Court
Reports, Lawyers' Edition (L.Ed.)]
Case Headnotes
 Every case in the National
Reporter System has at
least one headnote.
 A headnote is a paragraph
summary of a single point of
law discussed in the case.
 Every headnote has at least
one Topic & Key Number.
Headnote 1
 Headnotes appear in the
order the points of law are
discussed in the case.
Headnote 2
West Topic & Key Number System
 Classification system with at least one topic
and key number assigned to each point of
law in each reported case
 Extensive outline of the entire body of case
law in this country
 Index to entire National Reporter System,
helping you locate cases with similar legal
issues in any jurisdiction
Digest (the Indexes to Reporters)
 Case Reporters are arranged chronologically


not what a legal researcher usually needs
usually need to find cases by subject
 Digests make cases accessible by subject


Topics and key numbers are used to classify
case headnotes by subject
Digests consist of case headnotes


organized alphabetically by topic
then numerically by key number
Lionel Hutz, Esq. and Digests
 Marge: So, Mr. Hutz, does
my husband have a case?
 Hutz: I'm sorry, Mrs.
Simpson, but you can't
copyright a drink.
This all goes back to the
Frank Wallbanger case of
'78. How about that! I looked
something up! These books
behind me don't just make
the office look good, they're
filled with useful legal tidbits
just like that!
Components of Digests
“Useful legal tidbits”
 Collection of case summaries organized
by topic (arranged A to Z)
 Descriptive Word Index (Topic index for
case summaries)
 Words and Phrases (volumes alphabetically
list words or phrases “judicially defined” in the
indexed cases)
 Table of Cases
Topic Outline
 Divides law into 400+




digest topics
Each topic addresses a
broad legal issue
Breaks down each topic
into subheadings
Contains approximately
100,000 key numbers
Topics are occasionally
added, eliminated, or
renamed
Types of Digests
 Generally correspond to case reporters
 one for each state
 few regional digests (Atlantic, North
Western, Pacific, and South Eastern)




American Digest System (a master index to all
the case law in the United States)
Federal Practice Digests
Supreme Court Digest
U.S. Supreme Court Digest, Lawyer’s Edition
 Most digests have more than one series
Descriptive Word Index
 Each digest set includes a Descriptive Word Index.
 Use Descriptive Word Index of digest to identify
topic(s) & key number(s) for relevant cases.
Use Digests to Find
Relevant Cases
 Look in Descriptive Word Index for


words that describe the pertinent facts of the case
words that describe the legal question involved
 Most descriptive words fall into 1 of 5 categories
of elements common to every case:





Parties or facts
Places and things
Issues or basis of action
Defenses
Relief sought
Descriptive Word Index
West’s Federal Practice Digest 3d
Table of Cases/Defendant-Plaintiff
Table
 Digests can help you find cases when you have only
a partial citation.
 The table of cases is an alphabetical listing of cases
in that digest. It lists cases with the plaintiff's name
first.
 If you know only the defendant's name, the
defendant-plaintiff table should be consulted.
 An advantage of using the table of cases, rather than
the defendant-plaintiff table, is that the table of cases
lists all of the topics and key numbers under which
that case can be found.
Table of Cases
West’s Federal Practice Digest 3d
Table of Cases
Reprinted from West’s Federal Practice Digest 3d
Defendant-Plaintiff Table
West’s Federal Practice Digest 3d
Words and Phrases
 Words and Phrases volumes alphabetically
list words or phrases judicially defined in the
indexed cases.
 “Judicially Defined” the legal definition of a
word or phrase, as given by statute or as
determined by courts
 Words and Phrases lists the case citations
where the definition was offered.
Reporter/Digest Review
 Case involving Los




Angeles News Service
One of the major
networks (ABC, CBS,
NBC)
Federal
Discuses Fair Use
Rodney King Riots
Use Digests to Find
Relevant Cases
 Use the topic(s) & key number(s) identified in
Descriptive Word Index to find relevant
headnotes in case summaries volumes.
 Most volumes of digest consist of case
summaries



Summaries are actually individual headnotes
extracted from cases and rearranged by topic
A single case is often represented under multiple
topics in a digest
Each summary includes the name of the case
and its citation(s)
Other Digests
 Century Digest, indexing cases rendered
during the period 1658 through 1896;
 Decennial Digests - indexing cases in tenyear chunks in the 1st through 8th Decennial
Digests (1897-1975) and, beginning with the
9th Decennial Digest, indexing each decade
in two parts, "Part 1" and "Part 2."
 Generally used for “scorch the earth” type
research
Citators





Overview of citators
Why you must use a citator
When to use a citator
Shepard's on LexisNexis
KeyCite on Westlaw
 It’s hard being a Law Librarian in Springfield
 C:\WINNT\Profiles\k.courtney\Desktop\homer
_jail_book.mov
Where are we in the stages of a
Research Plan?
 familiarize yourself with the area of law –
secondary sources
 locate, read, and analyze primary authority
 make sure primary authority is good law –
cite check, validate, update
 when appropriate, locate additional primary
and secondary authorities
What Is a Citator?
 A citator lists all subsequent cases that have
cited the case in question

may also list selected secondary authorities
 Additional features may provide






parallel citation
info about nature of what later case said
filters – e.g., jurisdiction, headnote, date
depth of treatment
graphical KeyCite
alert services
Citator Terminology
 Cited Case – the case you have found and
whose value you are trying to determine


“KeyCited Citation” – KeyCite
“Citation You Entered” – Shepard’s
 Citing References – authorities that have
specifically mentioned the cited case
 History – what happened in cited case itself


“full history,” “negative indirect history”
“prior history,” “subsequent appellate history”
 Treatment – how other cases dealt with case
Online Citators
 LEXIS has Shepard’s.

Still the “industry standard.”
 Westlaw has KeyCite.

Good as a research tool.
Using Online Citators
 Often more efficient than the
print version.

No need to look in several
books.
 Factor in time on computer
and billable time.
 Know how the services
charge you.
Why to Use a Citator
#1 – Validation / cite checking: to check
precedential value of case (“Is it still good
law?”)

Check for negative and positive history

Check for negative treatment
Decisions Are Final
 Once case is published, its language will not
change


no pocket parts
not “updated” in usual sense
 Once appellate process is completed,
resolution of case as applied to its parties will
not change
 Citators “update” current value of case as
precedent, i.e., whether it is still “good law”
History – Same Case, Later Decision
 Reversed – reverses the case you are
checking (cited case)
 Vacated – vacates or withdraws cited case
 Modified – modifies or changes cited case
 Affirmed – affirms cited case
Treatment – Different Case
 Overruled – expressly overrules all or part of
the cited case
 Limited – restricts application of cited case
 Criticized – disagrees with reasoning/result of
cited case
 Questioned – questions the continuing
precedential value of cited case
 Distinguished – differs from cited case, usually
because of different facts
Caution
 Don’t rely solely on
symbols and status flags!
 Citators are merely tools
 Use to identify citing
references that may have had
an impact on your case
 But always read those
references and decide for
yourself what they mean
Why to Use a Citator
#2 – Research: to find other authority
on the same subject

Primary authority
mandatory
 persuasive


Secondary authority
KeyCite (Westlaw) Contains
 Direct appellate history of a case
 Negative indirect history of a case
 Citing references to cases, administrative decisions
and secondary sources on Westlaw that have cited a
case
 Complete integration with the West Key Number
System
 Citing references to pending legislation affecting a
federal statute
 Citing references to cases, administrative decisions
and secondary sources that have cited a state or
federal statute or a federal regulation
Accessing KeyCite
 KeyCite this citation text box
 When viewing the full text of a document
while conducting research:


Click on status symbols (flag) in top right-hand
corner of “main frame”
Click the KC History tab or KC Citing Ref tab
in the right frame
KeyCite Symbols


Negative history; not good law
Negative treatment; can still use

History, but not negative

Citing references, but no history

Citing case (later case) directly
quotes cited case (your case)
KeyCite Symbols
 Depth of Treatment Stars
 Examined - The citing case contains an extended
discussion of the cited case, usually more
than a printed page of text.
 Discussed - The citing case contains a substantial
discussion of the cited case, usually more than a
paragraph but less than a printed page.
 Cited - The citing case contains some discussion of
the cited case, usually less than a paragraph.
 Mentioned - The citing case contains a brief
reference to the cited case, usually in a string
citation.
Evaluating KeyCite Results
 Look at KC History




Same case as it progresses through the
court system.
If you get a red flag, be wary of using the
source.
If you get a yellow flag, it’s probably fine to
use the source.
If you get an H or C, the source is still good
Evaluating KeyCite Results
 Look at KC Citing References
 Direct History (or Graphical) traces the case through the
appellate process and includes both prior and subsequent
history.
 Negative Citing References lists cases outside the direct
appellate line that may have a negative impact on the
precedential value of the case.
 Related References lists other cases that involve the same
parties and facts as the case, whether or not the legal issues are
the same.
 Court Documents lists the court documents, such as briefs and
pleadings, associated with the litigation.
Using Limitations on KC Citing
 Use to restrict results and make viewing
results more manageable and meaningful.
 Headnotes
 Locate
 Jurisdiction
 Date
 Document type
 Type of treatment
Other KeyCite Tools
 TOA = Table of Authorities

Status of authorities cited within the case you
are checking.
 KeyCite Alert (Monitor with KeyCite Alert)

Clipping service that will update your KeyCite
entry
 Hypertext links to full citing documents
Let’s KeyCite a Case
 255 F.3d 1180
What Shepard’s Helps You Do
 Determine the current status of a case,
statute, or other legal authority,
 Locate the most recent decisions.
 Find decisions involving legal or factual
issues similar to your case.
 Find statute annotations and law review
articles that have cited your case.
Accessing Shepard’s
 Use a text box
 While within a case:



Click the status symbol.
Click the Shepard’s hyperlink
Clikc the Shepard’s tab at the top of the page.
Two Reports
 Shepard’s for Research: A great way to start
your research. Begin your research with all
the cases, secondary sources, statutes and
annotations that cite your authority.
 Shepard’s for Validation: Use this report for a
list of only those citations that determine if
your case is still good law.
Shepard’s Signals
 Warning - Negative treatment
 Caution - Possible negative
treatment
 Positive treatment
 Cited and neutral analysis
 Citation information available
 Questioned (New) Validity questioned
by citing references
Using Shepard’s
 Focus Search (Limit or focus results)
 Show Signals
 Hyperlinks to pinpoint pages
 Viewing Options
 All Neg
 All Pos
 Any
 Custom Restrictions
 Table of Authorities (TOA)
 Shepard’s Alert – clipping service
Let’s Shepardize a Case
 255 F.3d 1180
Tip
 Citations on KeyCite and Shepard’s are not
always in ALWD or Bluebook format!
What We Covered Today
 Overview of court hierarchy and authority
 Case law reporting/publication
 Publication patterns of case law
 Basic Citators