Chapter 7 Case Research

Transcription

1 1 Chapter 7 Case Research Table of Contents Chapter 7 Case Research... 1 A. Introduction... 2 B. Case Publications Slip Opinions Advance Sheets Case Reporters Official and Unofficial Case Reporters Reported and Unreported Cases... 3 C. Features of Published Cases Parallel Citations Case Summaries Headnotes Case Digest Systems The Opinion Star Paging Additional Information Appearing in Published Cases... 6 D. Selecting Cases... 6 E. Case Research Statutory Issues Annotated Codes Citing References / Citing Decisions Digests and Online Case Searches Free Case Law Sources... 9 F. Case Research - Non-Statutory Issues Online Case Searching Case Digest Systems Citing References / Citing Decisions Free Case Law Resources, Including Google Scholar G. Using Relevant Cases to Expand Your Research... 15

2 2 H. Updating Cases What is a Citator? Using Online Citators to Update Cases Additional Helpful Citator Features Understanding the Citator Gap A. Introduction Whether your legal issue involves statutes, regulations, or common law, finding and analyzing relevant case law is an important part of the legal research plan. Chapter 1 introduced some of the foundations of case research, including the concepts of stare decisis, precedent, mandatory vs. persuasive authority, and the hierarchy of the federal and state court systems. It is recommended that you review that material before reading this chapter. Do not make the mistake of jumping into a case search as soon as you get a research project. This is what inexperienced researchers tend to do and it can waste a lot of time when the area of law isn t well understood. Be sure to consult secondary sources first so you understand your area of law and perhaps get some leads on cases through the footnotes provided. This can be helpful in getting an overview of the law, but remember that secondary sources provide a very selective list of cases and you should never rely on them alone for case finding. B. Case Publications 1. Slip Opinions When a court issues a written opinion, it is initially referred to as a slip opinion. Few courts actually publish these individually in print anymore (the U.S. Supreme Court being one exception), but many slip opinions are now available digitally on individual court Web sites. They can also be obtained in print on request from the court clerk s office. 2. Advance Sheets Publishers of case reporters collect selected slip opinions and bind them together into paper advance sheets. You will find these in the library as paperbound supplements at the end of the hardbound case reporter sets. The cases in the advance sheets include the assigned volume and page numbers they will have when they are eventually printed in the permanent hardbound volumes. 3. Case Reporters Case reporters are collections of opinions issued by a particular court, jurisdiction, or larger grouping of courts and published in chronological order by date of decision. When enough advance sheets have been issued, they are reprinted together as a permanent hardbound case reporter volume. Although most case research is now done online, citation rules in many jurisdictions still require citing the volumes and page numbers of the cases as published in print reporters.

3 3 4. Official and Unofficial Case Reporters Many jurisdictions designate a particular reporter as the official publication of opinions from a court or group of courts. For example, in New York State there are three official reporters: New York Reports (N.Y., N.Y.2d, N.Y.3d) publishes opinions of the New York Court of Appeals, Appellate Division Reports (A.D., A.D.2d, A.D.3d) publishes New York Appellate Division opinions, and Miscellaneous Reports (Misc., Misc. 2d, Misc. 3d) publishes opinions from the miscellaneous New York state trial courts. There is also an unofficial reporter, West s New York Supplement (N.Y.S., N.Y.S.2d), which republishes the opinions of all three levels of N.Y. state courts in one set. Additionally, N.Y. Court of Appeals opinions are published in the North Eastern Reporter (N.E., N.E.2d, N.E.3d), another unofficial reporter published by West that collects opinions from final appellate and intermediatelevel state courts in the northeast region of the United States. 1 Which version of a case opinion should you use? Most researchers use the unofficial versions published by West or Lexis because they have more added features to aid in finding additional cases and other materials. The official print reporters and court opinions posted for free on the Internet generally only contain the text of the opinion. New York State is one of the exceptions to this rule as its official reporter does include some headnotes and other information along with the case opinions. Should there ever be a discrepancy in the opinion text between the official and unofficial versions of a case the official would control. However, publishers of unofficial reporters (like West) would not have remained in business long if they were in the habit of publishing opinions that contain printing errors. A list of the Federal and New York State case reporters you need to be aware of in your Legal Research course is provided in Figure 7.1 at the end of this chapter. 5. Reported and Unreported Cases The large majority of trial court opinions are never published in reporters, as they usually revolve around issues of fact. Intermediate appellate cases are published selectively, depending upon the perceived importance of the legal issues discussed. Final appellate cases are almost always published. These cases (United States Supreme Court at the federal level, the Court of Appeals in New York State) clarify, change, or uphold a rule of law that has been a point of contention in the lower courts, or create new law. In the past, case opinions not selected for publication in a case reporter, known as unreported or unpublished cases, were only available from the clerk of the court that decided the case. Sometimes these decisions did get published in legal newsletters or newspapers, but they were still considered unreported because they did not appear in a 1 The North Eastern Reporter is a regional reporter in West s National Reporter System. Regional reporters group the states and the District of Columbia into seven geographic regions and publish the decisions of the final appellate and intermediate-level state courts (usually) in each region. The New York Supplement is also considered a West regional reporter, although it focuses only on New York and publishes decisions of all three levels of New York state courts.

4 4 case reporter. Courts did not consider such cases precedent and many had rules prohibiting citing to them. Lexis and Westlaw started adding some unreported cases to their databases many years ago, but in recent years they have been adding them in much higher numbers. At the same time, courts have started making such opinions available through their own Web sites. This has created some uncertainty about whether unreported opinions should be cited and considered precedent. Federal Rule of Appellate Procedure 32.1 now mandates that federal courts allow citation to unpublished opinions decided on or after January 1, This does not, however, require the courts to treat these cases as precedent, so the precedential status of unreported cases is left up to the judge s discretion. State courts have their own rules about whether unreported cases can be cited to, so always be sure to check the local court rules before using unreported cases, and be prepared that they may not be accorded the same weight as a reported case. In New York State, N.Y. C.P.L.R. 5529(e) governs the form of appellate briefs and states that decisions not reported officially or in the National Reporter System shall be cited from the most available source, indicating that citation to unreported decisions is allowed but making no comment on their precedential value. C. Features of Published Cases 1. Parallel Citations When the same opinion is published in more than one case reporter and citations to multiple reporters are included, these are described as parallel citations. Before online research systems came into existence, it was common for court rules, or citation manuals such as The Bluebook, to require that parallel reporter citations be included so users who had access to only one set of print reporters in the jurisdiction would be able to find the case. Now parallel citations are usually not required by courts for documents submitted to them, but parallel citations are still included in many online versions of cases (including Lexis Advance, Westlaw, and Bloomberg Law) and in unofficial print reporters. 2. Case Summaries Case summaries usually appear before any headnotes and the opinion text. They provide a quick overview of what the case is about, including which party prevailed and sometimes some prior procedural history. The case summaries are written by the reporter editors or provided by the court for convenience and should not be cited to or relied on as statements of law. 3. Headnotes Headnotes summarize particular points of law discussed in an opinion. Depending on the publisher, they are either written by the reporter editors or taken verbatim from the judge s opinion. Headnotes appear in the case document before the text of the opinion. The headnotes are numbered sequentially and the numbers also appear in brackets at the

5 5 beginning of the paragraphs in the opinion containing the points of law they refer to. Headnote numbers are hyperlinked online so you can jump straight to the part of the opinion being referenced. This is useful for quickly scanning the parts of a case you are most interested in. Understand though that you can never cite to a headnote for something a case says, you must cite only to the judge s opinion. 4. Case Digest Systems In addition to headnote numbers, you will also see topic names and sometimes other numbers above the headnotes. These are part of the case digest systems Lexis and Westlaw use to help researchers find additional cases on similar topics. Bloomberg Law now has its own digest system that doesn t use headnotes. Case digest systems are explained in greater detail in section E.2. of this chapter, below. 5. The Opinion The text of the opinion appears following any headnotes or case summary and usually includes the name of the judge(s) who wrote it. Only the opinion section of a case document constitutes primary authority. If a particular case is considered mandatory authority in your jurisdiction, note that any concurrence opinions or dissents following the main opinion are not mandatory (see Chapter 1 for more information on this). Also, if an opinion is designated as a memorandum it does not carry the same weight it normally would, especially if it merely affirms a lower court s decision without adding any new discussion of the legal issues in the case. 2 When an appellate opinion does not speak on the issue you are researching, you should cite to the lower court s decision instead (but you can include mention that your case was affirmed by a higher court in your citation). 6. Star Paging Citation rules often require citing to the official print reporter when a case has been published there. This could present a problem for researchers using the unofficial reporters because the volumes and page numbers of those sets are not the same as the official publications. Before online research systems existed, some unofficial print reporters addressed this issue by including markers in their reprinted opinions to indicate where the page breaks occurred in the official reporters so researchers could use the unofficial version without having to look the case up again in the official version for a citation. This was known as star paging (even when the marker did not resemble a star). On Bloomberg Law, Lexis Advance, and Westlaw, when only one reporter is being tracked the page turns will be indicated with a single * and/or the page number will be in [brackets], depending on which research system you re using. For example, if you were reading this sentence in a reporter and you saw [*358], you would know that the part of this sentence following [*358] is on page 358 of the print reporter, while the text that immediately precedes the marker is on page 357. If two or more reporters are being tracked, the page numbers are designated with one or more additional * symbols. For 2 New York state courts include memorandum opinions that do discuss the law and can be cited as precedent, so they should be distinguished from memoranda where there is no discussion.

6 6 example, a single * will represent page turns for the first reporter cite (if an official reporter citation exists, it will always get the single *), ** will designate pages in the parallel unofficial reporter, and in some cases additional stars will be used to track pages in additional reporters. Online systems often provide an option for users to highlight a particular reporter s star pages to distinguish them from other reporter pages being tracked. 7. Additional Information Appearing in Published Cases Unofficial versions of cases, especially online ones, often contain additional information including the attorneys representing the parties were, links to briefs and other court filings in the case docket, 3 etc. D. Selecting Cases Depending on the issue you are researching, you might find very few cases or hundreds of them. Inexperienced researchers can be overwhelmed when trying to identify which cases are most useful. Before you begin searching, it helps to have some idea of which cases you should look for. Here are the main considerations for case selection: Relevance Finding a case that precisely matches your fact pattern is rare. In the absence of exact matches, finding cases that address the legal issue(s) you are researching should be your goal. It is often necessary to analogize or distinguish cases discussing your issue when the facts are different. Mandatory authority Relevant mandatory authority should be used whenever possible, so it is important to recognize which courts in your jurisdiction constitute mandatory authority. Persuasive cases can still be used in the absence of mandatory cases, or to fill in gaps or fact scenarios not covered by the mandatory cases. They can also be used when you are attempting to distinguish unfavorable mandatory cases. Recent Newer cases usually reflect the current state of the law more accurately than older cases. Case precedent can be weakened or overturned by later cases or statutory amendments. When choosing cases interpreting statutes, be sure to compare the dates of decisions with the dates of any statutory amendments to be aware of any statutory language that has changed since the cases were decided. Established authority Older cases that are still being cited favorably by current decisions can serve as strong precedents, especially when they are from higher courts and are mandatory in your jurisdiction. When a case is repeatedly cited favorably by later opinions, this is a sign that it may be a seminal case on your issue. 3 A docket is a record of the court proceedings of a case. When a case is filed it is assigned a docket number. The docket contains a chronological list of filings, including the complaint or charge, answer, motions, rulings, briefs, and other documents filed by the parties or the court. The individual documents may or may not be available online. Bloomberg Law has the most extensive collection of filings, is most up-to-date, and is easiest to use when you want to look at the docket for a case and quickly access the filings. Recently Lexis and Westlaw have been expanding their collections as well, but the dockets and the case filings associated with them are in separate databases, limiting their usefulness. The Federal court system maintains PACER (Public Access to Court Electronic Records), but it s not free and there s no reason to use it as long as you have access to Bloomberg Law. Some state courts also make their own docket information publicly available on their websites.

7 7 Good law It is important to update cases to ensure that they have not been weakened or invalidated. Updating tools like KeyCite on Westlaw (the History and Citing References features are part of this), B-Cite on Bloomberg Law, and Shepard s on Lexis Advance, help you determine a case s status. Do not ignore cases because they go against your position Your opponent will certainly use such cases, so it is important that you research them just as thoroughly to defend your position. You will need to distinguish these cases in your arguments and briefs, especially if they constitute mandatory authority in your jurisdiction. E. Case Research Statutory Issues The case finding part of the research process differs significantly depending on whether you are looking for cases that interpret a statute or cases that control a common law area. For this reason, the case research approaches for statutory and common law ( non-statutory ) issues are covered in separate sections of this chapter. The case-finding tools provided by the research services will differ in emphasis depending on which type of issue you are researching. However, both types of case research require the use of more than one approach to be thorough, and the general case selection principles are the same regardless of the issue you are researching. 1. Annotated Codes As you learned in the statutory research chapter, when your research reveals that a statute relates to your issue you must find the applicable code and read the statute. An annotated version of a statutory code, in print or online form, is an excellent resource to use early in the research process for finding a variety of authorities, including cases. After you read the statute and pick up some background information using secondary sources, you should begin your case research by browsing the cases listed in the annotated code. The cases listed in the annotated codes appear under Notes of Decisions in codes published by West, and under Case Notes in codes published by Lexis. When there are more than a few cases listed, the publishers often organize them topically so potentially relevant cases are easier for researchers to identify. The cases cited in the annotated codes include descriptions that are often taken directly from the case headnotes. You should never rely on these descriptions as statements of law, but they are helpful in determining whether the cases are relevant to your issue and worth reading. Bloomberg Law does not have an annotated code. It is important to remember that neither publisher s annotated code includes all the cases that may be relevant to a statute. The editors of each code select the cases they feel are most significant and organize them in their own way. Sometimes the cases chosen for inclusion under a particular statute differ substantially between the two codes. For this reason, when both codes are available to you, it is recommended that you consult both during your search for cases. You will also need to use some of the other case finding methods discussed below to be sure you do not miss important cases on your issue that are not included in either code.

8 8 2. Citing References / Citing Decisions The Citing References tab on Westlaw and the Citing Decisions tab in Shepard s on Lexis Advance provide a list of all published (and some unpublished) cases that have cited each statute. These lists of citing cases provide no descriptions of what the cases are about, but you can search the full text of the cases and limit your search results further in other ways. On Westlaw, click on the Citing References tab while you are viewing the statute, then select Cases under the View choices. Once you have your list of cases, you have several choices of filters to narrow your results, including jurisdiction, date, and searching the full text of the citing cases using the Search within results box. Note that searching using the latter feature requires the use of a terms and connectors search when including more than one term. On Lexis Advance, click either the View Shepard s Report link or the Shepardize tab while viewing the statute to see a list of citing cases. Lexis provides four main ways to sort through the list: by analysis (supplied by Shepard s editors), by court/jurisdiction, by year of decision, or by searching the full text of the cases using the Terms within results box. Again, searching using the latter feature requires the use of a terms and connectors search when using more than one term. Bloomberg Law has recently introduced a similar feature called Smart Code. 4 While viewing a section of the U.S.C. or a state code, accessing the Smart Code link will bring up a list of extracts from all the cases in the Bloomberg Law database that have cited the statute. The results are initially sorted by date from newest to oldest, but the sort order can be changed to show cases from the highest court or cases that have been cited the most first. The results can be filtered by strength of discussion, court, topic, date, or by searching either the text of just the case extracts or the full-text of the case opinions. The searching filter requires the use of terms & connectors searching for searches that contain more than one term. 3. Digests and Online Case Searches Although annotated codes and citing references/decisions are the primary case finding tools when a statute is involved, digests, and case searches can be used to fill gaps. For example, a case may talk about a statute without actually citing it. This is fairly unusual, but when it happens the citing references/decisions lists will not pick up the case automatically. Unless these cases are selected for inclusion in the annotated code, the only way you will find them is through a digest or online case search, or when they are cited within other cases that you have already found. Digests are explained in detail in the next section of this chapter about researching non-statutory issues. Digests and online case searches are an important part of common law research, where no statutes are involved. 4 Bloomberg Law doesn t identify this feature as BCite because no analysis is provided of the effect the cases might have on the statute.

9 9 4. Free Case Law Sources The two most useful case-finding tools for statutory research, annotated codes and citing references/decisions, are not available for free on the Web. As a result, free websites such as Google Scholar s case collection are not particularly useful for case research involving statutes. You could try to run a search that includes a citation to a statute, however, this is problematic because the format of statute citations appearing in case opinions is not always consistent. F. Case Research - Non-Statutory Issues As discussed in Chapter 1, the United States judicial system s use of earlier court decisions to establish precedent for later ones comes from English common law tradition brought over to this country during the colonial period. Common law originally controlled most areas of law in the United States, but over time, as issues in our society and technology have become more complex, statutory and regulatory law has taken on a much larger role. However, there are still some areas of law that are not governed by statutes. Much of tort law is still reliant on common law, for example, and courts will draw on common law to decide any legal issue when there is no controlling statute. In these areas, judge made law still prevails. The approach you use to find cases on issues that don t involve statutes (or regulations) differs in some significant ways. The annotated code that plays such a large role in statutory case research is obviously not part of the strategy for finding cases on common law issues. Instead, doing keyword or terms and connectors searches takes a much more important role in the non-statutory case search process, as well as using digests. 1. Online Case Searching Lexis Advance, Westlaw, and Bloomberg Law contain all officially published United States cases (both state and federal), as well as additional unreported cases. When searching for cases in these online systems, remember to limit your searches to your particular jurisdiction before you begin. Review subsection C of Chapter 4, Search Tools & Techniques, for general information about constructing keyword and terms & connectors searches. You can begin your case search by using the initial search you used to find secondary sources, but you may need to modify that search to incorporate new terms and information you learned while reading your secondary sources. a. Browsing Case Search Results Lexis Advance, Westlaw, and Bloomberg Law display case search results in order of relevance by default. You do have the option to sort the order of the results in other ways if you wish, including by date of decision or level of court. The search engines use different algorithms to determine which documents are most relevant, so running the same search on all three systems will produce different results in the number of cases retrieved and the order they re listed in. In addition to the different search algorithms being used, the text of the case documents being

10 10 searched on each system is not exactly the same because the services include different headnote text and other information. Lexis Advance, Westlaw, and Bloomberg Law offer options to include short snippets of text from the cases in the result list so you can get some idea of which cases might be more legally relevant to your issue. Your search terms will be highlighted in the result list and in the full-text of the cases. Additionally, Lexis Advance and Westlaw provide tools that allow you to easily jump to the parts of the case that contain your search terms. Lexis Advance has some additional unique features for analyzing case results that you may find helpful. Search Term Map - While viewing a Lexis Advance case search result in graphical view mode 5 or looking at an individual case, Lexis provides a Search Term Map, which is a color-coded 6 bar showing where your search terms appear in the case document. This can be used to help assess the effectiveness of your overall search result, as well as assisting you in browsing through individual cases. Each search term is given a different color, and the Search Term Map bar indicates whether the terms appear in the summary, headnotes, or opinions in the case. While viewing a case document, you can move your cursor over the bar to see where multiple terms are concentrated, and clicking on the bar takes you to the part of the opinion that point of the bar represents. The Lexis Search Term Map video allows you to see this feature in action and learn more about it. Ravel View While looking at a Lexis Advance case search result, there is a Ravel View option in the upper right corner of the screen. Selecting this option presents a data visualization tool showing how the first 75 cases in your result are related to each other. Each case is represented as a circle on a grid that shows you what level of court each case is from and how recent it is. The size of the circle represents how often a case has been cited, so those represented by larger circles have been cited more than smaller ones. Additionally, circles placed higher on the grid within a court level indicate higher relevance to the search entered. Moving your cursor over a circle highlights lines connecting your case with earlier cases that it cited as well as later cases that cited your case, while clicking on the circle displays the case information and allows you to hover over the connected cases to see what point of law they discussed in relation to your case. The lines connecting the cases are color coded to show whether the earlier cases were cited favorably or not and how later cases cited your case. 7 You can also filter the Ravel View results if you wish to. Ravel View is especially helpful for seeing which cases might be considered the leading authorities on your issue, as well for finding related cases in your search results that you might have overlooked. The Lexis Ravel View video allows you to see this feature in action and learn more about it. 5 View modes are provided in the upper right corner of the search result screen. 6 The multicolor view option can be toggled on or off. 7 Analysis of case treatment by later cases is discussed in the updating section of this chapter.

11 11 b. Narrowing Search Results Lexis Advance, Westlaw, and Bloomberg Law all provide options to filter your case results in the left column of the screen. Use these options if you have a large search result and you are seeing a significant number of cases that do not relate to your issue, or if you want to see only cases from a particular court or time period. Remember that when using search within results on Lexis Advance and Westlaw, you are required to use the terms and connectors search method if you wish to include more than one term. Bloomberg Law does not have an option to search within the results of a case search, so your only option on that system is to edit or replace the existing search. c. Editing a Case Search If you are unhappy with your initial case search result and feel that narrowing it won t help because the cases you retrieved are not relevant to your issue, you can enter a new search by modifying the one you had or using a completely new one. The decision of whether to enter a new search will take on more significance when you re out of law school if you are on a subscription plan that charges you for each search you run. Unlike using the narrowing techniques just discussed, which are usually not considered to be new transactions, editing a search and entering it again could incur an additional charge. How do you determine if you need to edit your search? If you have already learned about several cases on your issue that are not showing up in your case results, this is one indication that there may be a problem with your search. It is possible some of the terms you included in your initial search turned out to be irrelevant to your issue. Before constructing a new search, analyze the results you already have to see if there are any clues as to why your search did not work out, such as terms being used in unexpected ways in other cases. 2. Case Digest Systems Before online legal research systems began gaining widespread use during the 1980s, the print digest was the primary case finding tool for nearly a hundred years. Cases published in reporters are arranged in chronological order, so digests were created to find cases by topic. Although digest systems were created to find cases in print format long before online search systems were available, they still exist online and can be used in addition to full-text searching to retrieve a group of cases on a discrete topic. West Key Number System The most well-known and frequently used case digests are still published by West Publishing (the original developer of Westlaw, and now part of the Thomson Reuters publishing group). The founder of West Publishing, John West, created the West Key Number System for organizing and finding cases that remains in use today, both in print and on Westlaw. The system breaks the law down into just over 400 broad topic names and

12 12 then assigns Key Numbers to subtopics within each broad topic. For example, looking at the Key Number Constitutional Law k. 1526, the Key Number 1526 represents a narrow subtopic ( freedom of speech, expression, and press in general prior restraints in general ) within the main topic of Constitutional Law. When using the West Key Number System online, the main topic name also gets a number, so this same Key Number on Westlaw appears as 92k1526 ( 92 represents the main topic Constitutional Law). In order to create a digest, the West editors start by reading cases and writing the headnotes you see when you view a case on Westlaw or in a West print reporter. Each headnote describes a point of law discussed in the case. The editors then assign appropriate topics and key numbers to each headnote. The headnotes are then re-printed in digests, where they are referred to as digest summaries. In print, the digest summaries are organized alphabetically by assigned main topic, and then numerically by key number within that topic. Whether you re working in print or online, the West Key Number system allows researchers to choose a relevant topic and key number to find a group of cases that could be useful. Westlaw has a short video explaining the digest creation process to help you understand what digest systems are and why they re useful. West digests exist for all federal and state case reporters published by West, and regardless of which jurisdiction you re researching in, the West Key Number system provides the same organization of legal topics. This means that if you find a case on Westlaw from an Alaskan state court that is very relevant to your issue but has no precedential value in your jurisdiction, you could scan the headnotes in that case to discover a West Key Number you could use to find cases that discuss the same point of law in your own state. Lexis Advance Topic & Headnote System Lexis Advance also has an online digest system they call the Topic and Headnote system. There is no print equivalent, but the organization is similar to the Topic and Key Number system on Westlaw. Links to the Topic and Headnote system are provided above the Lexis headnotes. Unlike the headnotes in Westlaw, which are written and assigned Key Numbers by human editors, the Lexis headnotes and digest topics are created and assigned automatically by the system without the input of editors. Bloomberg Law Points of Law Bloomberg Law has a feature called Points of Law that functions similarly to an online digest system but without using headnotes at the beginning of the cases. While viewing a case, clicking the Points of Law link highlights various sections within the opinion and browsing buttons are provided to move easily through the highlighted sections. Clicking on one of the highlighted sections of text brings up a box containing a summary of a point of law and links to a few of the most cited cases on the point. You are provided with options to expand your research using a citation map, viewing related points of law, or selecting the View This Point of Law link. The latter option brings up cases all over the United States that have discussed the point and allows you to filter the results by jurisdiction, court, and date. The Citation Map allows you to see how the cases on the point of law are related to

13 13 each other on a timeline. Similar to the Lexis Advance Topic and Headnote digest system, the Bloomberg Law Points of Law system is created automatically using only language from the opinions and no input from human editors. a. Using Case Digest Systems Online Westlaw has a short video explaining how to use the Key Number System in several different ways. The simplest and perhaps best way (described briefly in the video beginning at 3:30) is to look at the headnotes in cases you ve already found on Westlaw and click on the Topic and Key Number assigned to a relevant headnote. Use the Change View option next to the first headnote to see more or less of the Key Number system s topical arrangement hierarchy. Once you select a digest link on Westlaw or Lexis Advance you will retrieve a list of cases that have been classified under the topic. Depending on the topic, there may be only a few cases or hundreds of them (Lexis tends to include a lot more cases under their topics). Both systems provide tools to narrow your results, if needed. There is an important difference between Lexis and Westlaw when it comes to the search within results option for cases listed under a particular digest topic. Lexis Advance will search the full-text of the listed cases, but Westlaw only searches the text of the headnotes classified under the topic. If you want to search the full text of only cases that have been classified under a particular key number on Westlaw, use the key number as a search term. For example, if you ve discovered that West Key Number 92k1526 is particularly relevant to an issue you are researching, including 92k1526 as one of your search terms will find cases that have been classified under that Key Number (92k1526 represents the Key Number Constitutional Law 1526). You can also use it in Search within Results to pull out just the cases in an existing search result that include your Key Number. b. Using Case Digest Systems in Print If you don t have access to Westlaw, there are several tools available for finding relevant Key Numbers in a print West digest: Index - Located at the end of the digest set, the index should be used first in most cases as it can point you directly to potentially relevant Topics and Key Numbers using keywords that you selected earlier in your research process (this is the analog version of keyword searching for cases). Topic outline - Located at the beginning of each of the 400 plus main topics, the topic outline can be browsed to see how the publisher has organized the topic and to discover where the most relevant key numbers are located. When you have already identified a good topic and key number using the index or some other method, you should always check the topic outline for related key numbers in the same topic area. Relevant headnotes in cases you have already found - You can read headnotes and use the Topics and Key Numbers assigned to them to enter the digest

14 14 system. Again, be sure to check the digest topic outline once you are there for possibly related key numbers in the same topic area. Table of Cases Case tables appear in separate volumes located at the end of the digest set. They are used when you know the name of at least one party to a case but do not have a citation. This tool lists plaintiffs and defendants alphabetically by name and supplies reporter citations along with the key numbers that the cases have been classified under in the digest. Words and Phrases This tool also appears in separate volumes located at the end of the digest set. When the definition of a word or phrase is important to your issue, Words and Phrases will point you to cases selected by the editors that contain judicial definitions of terms. Citing cases in your jurisdiction is always preferable to citing a legal dictionary for the definition of a term (which should be avoided). Print digests are updated with pocket parts appearing in the back of print volumes, and sometimes paper supplements appearing at the end of the digest set that update the pocket parts. Be sure to check any pocket parts or supplements under the same topic and key number you used in the main volume so you will see the most recent cases. 3. Citing References / Citing Decisions After you have identified important cases on your issue, it is a good idea to use the list of citing references to look for any relevant citing cases you might have overlooked during your case searches. Keep in mind that this method will only find cases that have cited the case you are viewing, not every relevant case on your topic, so these tools should never be the only case finding devices you use for common law case research. While viewing a case, the Citing References tab on Westlaw, the Citing Decisions tab in Shepard s (on Lexis Advance), and BCite on Bloomberg Law can be used to find more recent citing cases. These tools function the same way for cases as they do for individual statutes in the statutory case finding section of this chapter: they provide a list of all published (and some unpublished) cases, as well as other sources that have cited the case you are viewing. Shepard s now also includes a data visualization feature you can use to see connections between citing cases and which ones have been cited most frequently. 4. Free Case Law Resources, Including Google Scholar Some attorneys begin case law research by searching on the Internet before spending money on a commercial database. Similar to using secondary sources and free websites for background information at the beginning of your research, reading cases in a free database can help you understand your topic better and learn what some of the important cases are before delving into a case search in a commercial research system. There are many sources of free case opinions on the Internet. Many court websites make at least some of their opinions available online. If you know that a particular court

15 15 recently decided a case, using the court website to access the opinion can be a good strategy. University hosted websites, such as the Legal Information Institute at Cornell Law School, sometimes collect case opinions for selected courts. Commercially hosted websites may also offer free access to some primary law, or convenient links to it. When selecting a free case source on the Internet, keep in mind the factors you learned for evaluating websites. You will especially want to know as much as you can about the content of the database you are searching. What period of time does it cover? Which courts/jurisdictions are included? Are all cases included, or is inclusion selective? How often is the database updated, and is the last date of the last update indicated? Google Scholar is one of the more comprehensive sources of free case law available. Coverage includes published opinions of state appellate and supreme courts 8 since 1950, federal district, appellate, tax and bankruptcy courts since 1923, and the United States Supreme Court from Google Scholar also searches law reviews, as well as non-legal scholarly publications, so on the homepage you will need to select what type of documents you want to search for: Articles (legal and non-legal scholarly publications) or Case law. Once you have a search result, a variety of filters allow you to limit the result to decisions from particular jurisdictions, individual courts, and dates. You can also sort your results by relevance or date. G. Using Relevant Cases to Expand Your Research Finding even just one relevant case on your issue can help lead you to additional cases and other pertinent materials. Using the suggestions here can be particularly helpful early in your research if you are having trouble finding cases with the searches you ve tried. It can also be helpful later in the process when you want to make sure you ve found all the relevant case law on your issue. As you read through the techniques described below you may find it helpful to open a case on Westlaw and Lexis Advance so you can identify and try each of them. Keep in mind that some of these features may not show up in all cases though. Read the Case - Reading an on-point case can provide you with a better understanding of your issue and the law involved, including any unique terms that are used. This in turn can help you formulate a better search to help you look for other cases. 8 Although Google Scholar s case coverage is supposedly limited to appellate court decisions, it does include many New York State trial court decisions as well. This may be because in New York one of the trial courts is called the Supreme Court and Google could be interpreting those decisions as coming from an appellate court.

16 16 Links Within the Case - The cases and other sources you see cited in a case you re reading can be valuable additional sources of information. The cited sources will usually be hyperlinked for easy access. Digest Systems Linked to Case Headnotes - As discussed in section E.2.b.i. of this chapter, if you ve identified one or more Westlaw or Lexis headnotes in your case that are pertinent to your issue, use the digest system links to find other cases on the topic that you might not have seen in your earlier search results. Links to the West Topic and Key Number system and the Lexis Topic and Headnote system are easily accessed while viewing cases online. Citators (Shepard s/citing References/BCite) as described earlier in section E.2.c. of this chapter, while viewing a case you can use Shepard s Citing Decisions on Lexis, Citing References on Westlaw, and BCite on Bloomberg Law to find later cases and other citing sources that may be helpful. The citators, through their search within results features, also include the option of searching the full-text of the citing sources, in addition to the various sorting and filtering options provided by each service. Lexis Advance Legal Issue Trail - When viewing a case on Lexis Advance you will see a box to the right called About this Document that includes a feature called Legal Issue Trail. Click on the activate passages button there and you will see various parts of the opinion become highlighted. Click directly on any one of the highlighted sections that looks relevant and you will see a list of later cases that have cited your case for something contained in that part of the opinion, as well as a list of any earlier cases that were cited in that section of the opinion. Lexis Advance Topic Summary - Lexis sometimes includes one or more Topic Summaries with a case document, which can be accessed in the About this Document column, or by clicking any briefcase icons that appear in the Lexis Topic and Headnote trails. The Topic Summaries provide links to leading cases, statutes, and secondary sources on the topic. Westlaw Selected Topics - While viewing a case document, you might see a Selected Topics section in the right column. Clicking on a topic brings up a list of cases that were assigned to the topic. Bloomberg Law Points of Law use the Points of Law tool to find and select a particularly relevant portion of the case you re viewing. This brings up other cases related to that point which can be viewed in a list or using the Citation Map feature. The citation map provides a graphical view of how the cases are related to each other. H. Updating Cases 1. What is a Citator? A citator is a tool that tracks later sources that have cited a case, statute, or other source you are looking at. Each of the three major commercial research services provides a citator: KeyCite (on Westlaw), Shepard s (on Lexis Advance), and BCite (on Bloomberg Law). Google Scholar also includes a free citator called How Cited. However, most practitioners rely on KeyCite and Shepard s, which are the most comprehensive and established citators.

17 17 Citators are used in legal research for two reasons: 1) updating your sources, and 2) finding additional sources. You have already learned how citators can be used to find additional sources, and you ve also learned how to update statutes to make sure they haven t been amended. In this section you will learn how to update cases to determine if they are still good law. The process of checking the current status of an authority is sometimes referred to as updating or validation. 9 Updating helps you assess the precedential value of a case based on what happened in its subsequent appellate history and how later cases have treated the case. Shepard s is the only citator that is also available in print, but most people do not use it anymore. Online citators are much more up-to-date, much easier to use, and allow you to search and sort results in ways that are not possible in print. The time saved using online citators also makes them more cost effective to use than the print version of Shepard s. 2. Using Online Citators to Update Cases When updating a case, you need to look at both the case s direct appellate history and the treatment of your case by the later cases that cited it. If your case was appealed to a higher court, the decision might have been reversed, vacated, or modified. Later decisions by the same court or a higher one that are not part of the appellate history can overrule and the earlier decision, or potentially weaken it by criticizing or questioning the holding or reasoning. Shepard s, KeyCite, and BCite use color-coded signals at the top of each case to alert you to the case s current status. Generally, a red signal indicates that the case is no longer good law for at least one point of law discussed. A yellow or orange signal warns of some potentially negative treatment, while a green or blue symbol, or the absence of a symbol, indicates that no negative history or treatment exists. For a full list of KeyCite, BCite, and Shepard s signals and what they mean, use the Help feature in each service. By itself, a citator has no legal authority, and the status symbols should never be relied on alone for determining whether a case is still good law. Instead, the citator directs you to later primary authority that may affect the current status of the authority you are updating. When you see a red, orange or yellow signal attached to a case, you must read the cases that are indicated as having a potentially negative impact on your case and analyze for yourself whether the case s status on a particular legal issue has been weakened or destroyed. You must also keep the jurisdiction and level of court in mind when analyzing how later cases have treated your case. If a later case that says something negative about your case is from a lower court or from another jurisdiction, the impact of that case alone will have little or no effect on the status of your case. However, cases from courts with mandatory authority can have a very large effect on the status of an earlier case. 9 It is also common to refer to the process using the name of the citator, i.e. Shepardizing or Keyciting.