Post on 15-Jun-2015
transcript
CASE LAW AND CITATORS
Legal Research and WritingFall 2011
Why Court Opinions?
PRIMARY SOURCES
• Cases• Courts
• Statutes• Legislatures
• Regulations• Executive Agencies
Court Hierarchy
Court HierarchyFrom the Bottom Up• Trial Court
• Court of original jurisdiction• Court of general jurisdiction• Court of limited jurisdiction
• Family court, traffic court, juvenile court
• Proper name varies from state to state
• Intermediate Appellate Review• Name & Number of levels
vary
•Court of Last Resort• Supreme Court of
[State]• Supreme Court of
the United States
See The Bluebook, Table T.1 for a breakdown of courts for each state
Cases: Print Publication Sequence
Slip Opinions Distributed by the court; official
Increasingly distributed online, official status must be determined by the court rules
Put on electronic databases Advance Sheets
Preliminary version of a case in a reporter Contain same editorial notes and pagination
as bound volume Judge can make changes
Reporter Permanent version of decision
Reporters
Compilation of court decisions Generally chronological arrangement Can include decisions of:
a single court single level of a court system a single state a region of the country (a number of states) a specific legal subject (topical reporters)
These are increasingly rare in print
? What makes it into the Reporters?
National Reporter SystemWest Publishing (since 1880s)
Publishes “reported” federal and state cases Court rules are increasingly allowing the use of
unreported cases—the line is bluring. Provides uniform editorial treatment
Synopsis Headnotes Cross referencing material
Are NOT part of the case!! No substitute for reading the case!
Some are unofficial, although some have
been designated as a state’s official reporter
Maps!
Case headnotes
Headnote – a summary of a legal issue discussed in the case
Each headnote is assigned at least one specific topic West reporters integrate headnotes and their
specific topics with the West digest system (more later!)
Headnote – note summar
y of specific point of
case
How to find cases
Reporters tend to be a collection of unrelated cases, so we have to have a finding aid such as: Digests Secondary sources American Law Reports (ALR) Annotated codes Citators – Shepards & Keycite Electronic Databases
Digest
A subject arrangement of case summaries
Includes an outline or classification of the law or specific area of law
Case summaries are organized in the outline, under the specific issue raised in the case
West’s Digest System
Most comprehensive print case finding tool
An index to all reported court decisions and some “unreported” decisions
Only case finding tool for many older state cases not on electronic databases
Structure of Digest
Arrangement – topic/key number system Outline of the field of law Divided law into major subjects Each subject divided into topics (400 total)
and sub-topics Each sub-topic assigned a key number
Cases assigned to specific topic/key number based on the case headnotes
Using the Print Digest
1. Choose digest set Louisiana digest, regional digests*(not all
regional reporters have digests), federal digests
2. Dig In! Use case headnote Subject and topical analyses Search Descriptive Word Index Words and Phrases
(defines words, but is often limited)
Using the Print Digest“Terms” from case, client meeting, etc.
Descriptive Word Index
Topic & Key Number
Go to Volume containing topic and look up Key #
Read Topic Outline
Read case descriptions and pull and read relevant cases
(Gives you)
Read a case (headnote) or secondary source
Updating Print Digests
Be sure to check: 1. Main digest volume
2. Pocket part Some pocket parts are so large, the publisher
creates a separate bound volume
3. Cumulative supplements for the digest set Small paperback supplements following the last
volume in the set (some sets may not have this)
Hypothetical-Louisiana Case Law Digest 2nd
Your divorcing client seeks alimony from her husband. She currently resides with her 5 year old daughter from
the marriage as well as her stepdaughter who is six years old. Other than taking care of her two minor
children and her household, she has no training for any kind of a job and is unemployed. Is she entitled to
alimony under Louisiana law?
Terms: Alimony; Support; Allowance; Divorce; Nullification of Marriage
A) Louisiana Case Digest Second-Descriptive Word Index –look under “A” for Alimony
B) You find that it is under Marrriage Key #62
C) Go to Louisiana Case Digest volume which contains “Marriage”-it’s volume 38-on the spine “Lis Pendens to Master”
D) Read case entries, find case on point and update
If you have a case:
Select headnote dealing with your legal issue Use the corresponding topic and key number
In print, go right to the appropriate volume
In Electronic…
Westlaw allows you to directly access online digest from case headnote…from there you can create a custom digest…
Westlaw allows you to directly access online digest from case headnote
Click here
Choose what jurisdiction you want to find cases in
Add additional search terms
List of cases and materials on topic for jurisdiction you selected
Type in search terms to have Westlaw help you find right topic/key number
Click here for current page
Select best topic/key number from results list
Lexis
“Search by Topic or Headnote” Broad areas of law Drill down to more specific issues
If you have a case Lexis headnotes
not the same as West headnotes! “More like this”
Core terms
Select subject area and drill down
Subjects break down into specific sub-topics.
Select your sub-topic.
Select jurisdiction, sources, and further refine your search
“More like this” uses core terms
Lexis HeadnotesClick Here
“More like this” allows you to search other cases with similar core terms.
Can add your own terms.
Citators
List subsequent cases, law review articles, statutes, and other secondary sources that refer to an earlier case.
Way of tracking how a case has been used subsequently by courts, legislatures or commentators
So What?
Uses for Citators
Subsequent appellate history of your specific case
Subsequent validity of your case (upheld or followed, overruled in full or in part,
distinguished)
Discussion of your case in subsequent cases
Discussion of your case in secondary sources
Shepard’s lays out the subsequent history of the case, providing links to each decision
Westlaw also provides a graphical view of the history of your case
Using Online Citators
Lexis – Shepard’s
Westlaw – KeyCite
Current, no need for updating with additional steps
Links to case citations and secondary sources
*LSU Law Library no longer has an updating method in print!
Using Online Citators
Results can be sorted and narrowed very easily Sort by negative/positive treatment
Depth of treatment
Jurisdiction
Add additional search terms to narrow retrieved cases
How to Shepardize
2 ways to Shepardize
Directly from a case
From Shepard’s tab on opening Lexis screen with case citation
Shepardize directly from your case.
Shepardize directly from Shepard’s tab
Select Shepard’s for Research for more hits – all citing decisions. You can switch between these on results page by clicking between KWIC and FULL.
Either way, you will come to this page showing the citation history for your case. Note the breakdown of treatment.
Shepard’s lists prior and subsequent appellate history and then lists citing decisions. Under citing decisions, highest level of court is listed first, and federal before state courts.
Quick ways to limit Shepard’s display. Top line allows you to go to negative, positive and focus results. Shepard’s summary permits you to go immediately to specific types of treatment.
Focus – very powerful tool to limit Shepard’s display
Many options for limiting display. Types of analysis, focus terms, jurisdictions. Scroll down for more.
How to KeyCite
2 ways to KeyCite: Directly from a case
From KeyCite search box on opening Westlaw screen using case citation
“Full history” results give direct history of case, but not many citing references
“Citing references” results do not give direct history of case, but includes references to all citing cases.
*you will often end up looking at both!
Option 1: KeyCite directly from your case. Note you can select “full history” or “citing references”.
Option 2: KeyCite box located on main Westlaw screen on side tab
KeyCite screen comes up. Note that you are brought to “full history” results. This gives you direct case history. To see all citing cases, you must select “citing references” option.
Many more cases referenced, but note that direct history of this case is no longer displayed.
KeyCite Limits
Limit results by: Jurisdiction Depth of treatment Search terms Date Headnote (Topic and Key Number)
Must be in “citing references” display to use KeyCite limits
Limiting KeyCite display. Must be in “Citing References”.
Ways to limit are located on left hand vertical bar.
Locate lets you add additional search terms
KeyCite lets you even look at some foreign jurisdictions