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Shepard’s Shepard’s Legal Information Legal Information AnalysisAnalysis
Mar. 2005, Taiwan
By Jensen Wang
For educational purposes only
All products and brand names mentioned are trademarks or registered trademarks of their respective owners. Looney Tunes characters and all related slogans and indica are trademarks of Warner Bros. Inc. The use of such material falls under Fair use provisions.
The Seminar on Research and Application of Legal MaterialThe Seminar on Research and Application of Legal Material
AGENDA OF PRESENTATIONAGENDA OF PRESENTATION
1. Introduction on Shepardization 1. Introduction on Shepardization
2. Shepard’s on Caselaw 2. Shepard’s on Caselaw
3. Case Analysis for Commonwealth Materials3. Case Analysis for Commonwealth Materials
4. Bill Tracking & RegAlert4. Bill Tracking & RegAlert
5. Questions & Answers5. Questions & Answers
Legal ResearchLegal Research
Why we need Shepard’s / Shepardization?1. Counsel’s Duty
“Moreover, the failure to cite, if not Huang, at least Pisano, decided almost a year earlier, is a violation of counsel's "duty to disclose directly adverse authority." Counsel claim to have been "unaware of [those cases] until the oral argument on the motion." For counsel to have been unaware of those cases means that they did not Shepardize their principal authority … Thus their failure to cite adverse authority is not excusable.”
By Schwarzer J. in Golden Eagle Distributing Corp. v. Burroughs Corp., 40 Fed. R. Serv. 2d (Callaghan) 346
Legal ResearchLegal Research
Why we need Shepard’s / Shepardization?2. Inexcusable failure / Professional negligence
“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…). Shepardization would of course have revealed that the "precedent" no longer qualified as such”.
By Milton Shadur J. in Gosnell v. Rentokil, Inc., 175 F.R.D. 508
Legal ResearchLegal Research
Why we need Shepard’s / Shepardization?3. Dismissal of Application
“Petitioner's lead counsel admits that neither he nor any of the lawyers (including local Georgia counsel) or paralegals assisting him made any effort prior to the filing of the second petition to research the decided cases upon which he now relies…By simply "Shepardizing" the Fifth Circuit's prior decision in their own case, counsel would have been alerted to the decision in Westbrook, which in turn relies upon Spivey and controls Finney. Similarly, the use of basic research techniques such as …Lexis would have identified the possible relevance of these cases prior to the filing of petitioner's second petition…Accordingly, the court hereby determines that petitioner's failure to raise this claim in his second habeas petition was inexcusable”.
By Owens, District Judge in Stephens v. Kemp, 602 F. Supp. 960
Shepard’sShepard’s
Shepardization involves the following steps:Shepardization involves the following steps:
1.1. Identification of Leading AuthoritiesIdentification of Leading Authorities
2.2. Searching of Adverse AuthoritiesSearching of Adverse Authorities
3.3. Determination of ApplicabilityDetermination of Applicability
4.4. Eclipse on Future DevelopmentEclipse on Future Development
Identification of Leading AuthoritiesIdentification of Leading Authorities
Example: whether the employer can rely on the arbitration agreement to staythe proceedings in courts?
Employee EmployerEmployment agreement
Arbitration Clause
Equal Employment Opportunity Commission
Arbitration Tribunal
Federal Arbitration ActDisability Discrimination
Rig
ht-to
-sue
L
ette
r
(Signed a Release or Waiver?)
Identification of Leading AuthoritiesIdentification of Leading Authorities
Federal Arbitration Act and stay w/s proceeding and refer! w/s arbitration and Discrimination
Identification of Leading AuthoritiesIdentification of Leading Authorities
Identification of Leading AuthoritiesIdentification of Leading Authorities
- Warning: Negative treatment is indicated - Caution: Possible negative treatment
- Positive treatment is indicated - Citing Refs. With Analysis Available
- Citation information available
Identification of Leading AuthoritiesIdentification of Leading Authorities
Warning: Negative treatment is indicatedCaution: Possible negative treatmentPositive treatment is indicatedCiting Refs. With Analysis AvailableCitation information available
Supreme Court
Court of Appeal
2001
Warning
Court of Appeal
Supreme Court
Overruled
Caution
Distinguished
Affirmed
Positive Treatment
Court of Appeal
Applied
2002 2003
Citation
Cited
Identification of Leading AuthoritiesIdentification of Leading Authorities
Identification of Leading AuthoritiesIdentification of Leading Authorities
Identification of Leading AuthoritiesIdentification of Leading Authorities
Identification of Leading AuthoritiesIdentification of Leading Authorities
Identification of Leading AuthoritiesIdentification of Leading Authorities
Identification of Leading AuthoritiesIdentification of Leading Authorities
Identification of Leading AuthoritiesIdentification of Leading Authorities
Identification of Leading AuthoritiesIdentification of Leading Authorities
Identification of Leading AuthoritiesIdentification of Leading Authorities
Identification of Leading AuthoritiesIdentification of Leading Authorities
An agreement between an employer and an employee to arbitrate employment-related disputes does not bar the EEOC from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an ADA enforcement action.
Identification of Leading AuthoritiesIdentification of Leading Authorities
Shepard’sShepard’s
Shepard Legend shows - Caution: Possible negative treatment
Must Retrieve Shepard’s Report to Check Adverse Authorities
Shepard’sShepard’s
Retrieval of Shepard’s Report
Shepard’sShepard’s
Shepard’sShepard’s
Shepard’sShepard’s
Shepard’sShepard’s
Shepard’sShepard’s
““In the time since Waffle House was decided, the Supreme Court's reasoning In the time since Waffle House was decided, the Supreme Court's reasoning has not been explicitly extended to apply to situations where an employee has has not been explicitly extended to apply to situations where an employee has signed a waiver or release, rather than an arbitration agreement. Indeed, the signed a waiver or release, rather than an arbitration agreement. Indeed, the Supreme Court suggested that whether such a extension was in order was an Supreme Court suggested that whether such a extension was in order was an "open question“"open question“……The court considers the extension of Waffle House's The court considers the extension of Waffle House's reasoning in relationship to arbitration agreements, to waivers and releases, reasoning in relationship to arbitration agreements, to waivers and releases, quite reasonablequite reasonable””. .
By DOMINIC J. SQUATRITO in Senich v. American-Republican, Inc., 215 F.R.D. 40
Shepard’sShepard’s
Shepard’sShepard’s
Shepard’sShepard’s
Shepard’sShepard’s
“However, the issue here is not whether non-signatories to the agreement can be compelled to arbitrate; rather, it is
whether these non-signatories may compel plaintiff, admittedly a party to the contract, to arbitrate. See Choctaw,
271 F.3d at 406 (noting this distinction). EEOC v. Waffle House does not alter this analysis, and the claims against the
individual defendants are subject to the arbitration agreement”.
Gambardella v. Pentec, Inc., 218 F. Supp. 2d 237
Shepard’sShepard’s
Discrimination Claims can be maintained
Signature of Release & Waiver has no effect on
the EEOC suit
The claims against the individual defendants are still subject to the
arbitration agreement
Shepard’sShepard’s
Shepard’s Report gives the full picture of the authorities and the related decisions
ApplicabilityApplicability
534 U.S. 279
ApplicabilityApplicability
ApplicabilityApplicability
California State Courts
ApplicabilityApplicability
ApplicabilityApplicability
ApplicabilityApplicability
ApplicabilityApplicability
After reading the state courts treatment on the case, it can be determined whether the case is fully applicable to a particular
jurisdiction.
Eclipse for Future DevelopmentEclipse for Future Development
Eclipse for Future DevelopmentEclipse for Future Development
Eclipse for Future DevelopmentEclipse for Future Development
Eclipse for Future DevelopmentEclipse for Future Development
Eclipse for Future DevelopmentEclipse for Future Development
Eclipse for Future DevelopmentEclipse for Future Development
Verification of Commonwealth InformationVerification of Commonwealth Information
Verification of Commonwealth InformationVerification of Commonwealth Information
stay w/s proceeding and refer! w/s arbitration and waive
Verification of Commonwealth InformationVerification of Commonwealth Information
Hong Kong
England
Canada
Verification of Commonwealth InformationVerification of Commonwealth Information
Verification of Commonwealth InformationVerification of Commonwealth Information
Verification of Commonwealth InformationVerification of Commonwealth Information
Verification of Commonwealth InformationVerification of Commonwealth Information
Verification of Commonwealth InformationVerification of Commonwealth Information
Positive Treatment Technology: making use of treatment phrases
Verification of Commonwealth InformationVerification of Commonwealth Information
Verification of Commonwealth InformationVerification of Commonwealth Information
Negative Treatment
Verification of Commonwealth InformationVerification of Commonwealth Information
Verification of Commonwealth InformationVerification of Commonwealth Information
Case Analysis provides automatic checking on treatment phrase. Unlike Shepard’s report, it was not perused by editors and may not
totally reflect the decision of the court.
Verification of Commonwealth InformationVerification of Commonwealth Information
Bill TrackingBill Tracking
Bill Tracking – checking the current status of the Bills in U.S.
RegAlert – provide alert to the newly issued regulations on a topic
Bill TrackingBill Tracking
Bill TrackingBill Tracking
Bill TrackingBill Tracking
Bill TrackingBill Tracking
Requests the Council on Science and Technology to
create a study group on how the State should treat
intellectual property created under state contracts.
Full Text of BillFull Text of Bill
RegAlertRegAlert
RegAlertRegAlert
RegAlertRegAlert
RegAlertRegAlert
ConclusionConclusion
LexisNexis allow lawyers to check and verify the search Results and make sure the authorities submitted to client or court accurately represent the current law in force.
Q&As
Any Questions?
The Seminar on Research and Application of Legal MaterialThe Seminar on Research and Application of Legal Material
Thank You!