LRW OUTLINE

I. INTRODUCTION [BLR chs.1 & 2]

A. Sources of the law [BLR Ch. 1] - the primary sources, “THE LAW” itself, federal
government and states have three branches of government that create legal rules -
legislative, judicial and executive. The goal of legal research is to find, interpret and
apply the laws created by these branches.

1. Constitutions - establish a system of government and define the boundaries of

governmental authority. All states and the U.S. itself have a constitution. Think of
a constitution as a “meta-statute” above all other statutes.

a. U.S. Constitution is the “supreme Law of the Land” (Art. VI, Cl. 2,
“Supremacy Clause”) and thus state law must comply with its minimum
requirements. If states and feds clash, feds usually “preempt” state law.

b. The U.S. Constitution defines and establishes the three branches of the
federal government: Congress (Article I); Executive (Article II); Courts
(Article III).

c. U.S. and state supreme courts are the final arbiters of what laws or
governmental actions are “constitutional” under doctrine of judicial
review.

2. Statutes - laws created by legislative branch, statutes enacted by U.S. Congress

contained in the United States Code (U.S.C.) which is the official codification of
all U.S. statutes; those created by Georgia’s General Assembly are contained in
the Official Code of Georgia Annotated (“O.C.G.A.”).

a. Statutes are extremely important - always check for any state or federal
statutory authority that may apply to your legal issue.

3. Court opinions - under our common law system, judge-made law is an

independent source of the law. Rules are extracted from the published decisions
of state and federal appellate courts and applied by lawyers and judges in other
cases with similar facts and issues.

a. Courts also interpret statues and regulations.

b. Judicial opinions are collected in books called “reporters” that are

published chronologically (see below at 11). Also, unreported court
decisions (not published in a reporter) can be found in online computer

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 databases, but watch out for local court rules governing the citation of
unreported cases - some courts do not accept them as mandatory authority.

c. Law school places excessive emphasis on case law. In real life, statutes
and regulations are probably a bit more important. But, you will still
research and read a tremendous amount of case law as practitioners, and
use rules taken from cases to support legal arguments.

4. Administrative regulations - created by administrative agencies pursuant to

statutory authority. Regulations are “issued” or “promulgated” by agencies.

a. Although mostly part of the executive branch because they execute the
mandates established by statute, nevertheless, many “independent”
administrative agencies (e.g., U.S. Environmental Protection Agency,
“EPA” and Securities and Exchange Commission (“SEC”) exist with the
autonomous power to legislate, adjudicate and enforce their own rules.
Such independent agencies are sometimes referred to as the “headless
fourth branch” of government for you “jack-booted thug” conspiracy
types.

b. Don’t ignore administrative regulations! Because the world has grown

more complex, new administrative regulations governing narrow and
technical issues such as work place safety and environmental standards
have been issued with great frequency. These regulations have the same
force and effect as statutes and rules from case law, and violations of
regulations can result in major fines and penalties for your clients.

c. Regulations issued by federal agencies are collected in the multi-

volumed and unreadable Code of Federal Regulations (C.F.R.), now
available online at http://www.access.gpo.gov

d. States often have administrative agencies that are similar to federal

agencies except that they only operate on the state level. E.g., US
Environmental Protection Agency (“EPA”) at the federal level is the
equivalent of the Georgia Department of Environmental Protection
Division (of the Department of Natural Resources) (“EPD”) at the state
level.

B. Federalist system - because we live in a governmental system with 50 sovereign

states and one central federal government that claims to be supreme, there is substantial
overlap and tension between state and federal government. When researching, always ask
what jurisdiction you are in. If you are researching a state law issue, ask yourself if any
federal laws or regulations might apply.

C. Types of authority - divided into “mandatory” (or “binding”) and “persuasive.”

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 1. Mandatory authority must be followed. E.g., the Georgia Court of Appeals
must follow the rules contained in the decisions of the Georgia Supreme Court
(the higher court up the chain) when deciding a case.

2. Persuasive authority is only just that, e.g., a court is not required to follow a
rule taken from Williston, A Treatise on the Law of Contracts, but a court would
likely find a citation from such a learned treatise to be extremely persuasive. The
following chart is all you need to know :

TYPE MANDATORY PERSUASIVE

Primary Within the jurisdiction Outside the jurisdiction
(statutes, cases, regs)

Secondary Never Always

(everything else)

D. Process of Research & Generating Search Terms [BLR 6-23]

The general goal of legal research is to find primary authority that applies to a specific set
of facts. Thus, once a case or statute is found that applies to the facts of a situation
presented to you as a practicing lawyer, you will be able to advise your client as to
whether there could be liability for certain conduct, whether defenses to an adverse claim
exist, or whether the client could potentially file a lawsuit. Often times you will not find
primary authority that exactly fits your factual situation, that is, you will not find a case
or statute that is “on point.” Thus, you will need to read through and analyze several
cases or statutes to find primary authority that applies to your facts by analogy.

1. The process of legal research is not linear. Sometimes you will have a
specific case or statutory citation and then can jump right into the primary
sources. Even after reading the primary sources, though, you may be completely
confused and need to turn to a secondary source (e.g., ALR annotation, law
review article, legal encyclopedia) for a clearer explanation. Sometimes you will
jump back and forth between different sources. Remember that there are many
tools available for the resourceful legal researcher. Much of the work has
already been done for you through indexing, headnotes, and other editorial
enhancements.

2. Start with secondary sources. (See below at 5.) The approach of this course
assumes that you will start a research project completely clueless. Thus, you will
need to read commentary on the cases, statutes and regulations before you
actually begin reading these primary sources.

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3. Golden rules of research - the following guidelines will always apply to every
legal research project, abbreviated “JUST”:

a. Jurisdiction: always begin with this. Did you client dump hazardous
waste in Georgia or Tennessee? is it a federal matter? Was the contract
that your client breached formed in Florida or Georgia? Figure out which
jurisdiction’s law applies before starting to research.

b. Update: Although we are taught that under Stare Decisis the law
generally remains the same, in fact, the law is constantly changing.
Statutes are amended or repealed, cases are overruled or clarified. So, you
must update you research:

1) CHECK POCKET PARTS! - to keep printed legal sources up

to date without having to republish an entire new hardbound
volume, softcover supplementary pamphlets are published that
contain new information. These pamphlets are called “pocket
parts”- because they fit into a pocket in the back cover of the
hardcover book. Sometimes, however, the supplements are too fat
to fit into this pocket and are published as a separate volume.

2) SHEPARDIZE! (See below at 26.) Shepard’s is the leading

legal citator that lists all cases that have cited a certain case (also
available for statutes, law review articles, restatements, and
administrative regs) and will tell if your case has been overruled.
Must be checked to insure that cases and statutes are still good
law! Westlaw also maintains an electronic citator called KeyCite,
which is similar to Shepard’s. (See below at 30.)

c. Scope: make sure that you have narrowed down the precise legal issue
to research. Identify the key factual and legal elements. Break your issue
down into a sentence before researching. E.g., Under Georgia law, may a
storeowner be liable for the criminal acts of a third party that occur in the
store’s parking lot; under Florida law, may a party to a contract rescind the
contract because of a mutual mistake about the subject matter, etc.

d. Search Terms : the law is filled with jargon (“terms of art”) and most
of the indexing and classification systems are designed around this
terminology. Thus, you will need to fit your factual situation into a pre-
existing universe of legal nomenclature. Having good search terms is also
very important for computer- based legal research.

1) Generate search terms by “deconstructing” your factual situation

and making a list of possible search terms. Next, turn to legal
dictionaries and West’s Words and Phrases for more precise legal
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 search terms. Then, look to indexes and digests with these terms to
find applicable case law and statutes.

2) Some researchers generate search terms by categorizing the

information by: [a] parties; [b] places and things; [c] potential
claims and defenses; [d] relief. (BLR 19-21). This is a good way to
get into West’s Digest Topics because they are categorized in a
similar way. (More on West Topics at 11 -13, below.)

3) This outline contains a brief glossary of terms used in legal

research , attached at Appendix I.

4. Use human beings - you will soon discover that people working in the legal
system, government and academia are excellent resources. Seek out and ask law
librarians, other lawyers, judicial law clerks, and government employees for
guidance on legal issues. Don’t be too proud to claim ignorance and ask for help!

5. Know when to stop researching!!! - this is tough to do, especially when you
have a psychic feeling that there is a case on point out there somewhere. As a
practicing lawyer, this is a matter of economics. Clients freak out if you bill them
for too much research time. Generally, when the same cases, statutes, or
regulations begin to appear over and over again in your research, you can
probably stop.

6. Monopoly Capitalism - At least 90% of traditional print and electronic legal

publishing is controlled by two parent corporate entities: (a) the Thomson
Corporation; and (b) Reed Elsevier PLC. Thomson owns West and Reed Elsevier
owns Lexis-Nexis. Not to be xenophobic, but isn’t it kind of weird that the
publishing of most American legal sources is controlled by foreign corporate
entities (Thomson is Canadian, and Reed Elsevier is Anglo-Dutch). Don’t get too
paranoid about this, though, since these corporations are merely printing and
publishing The Law, which is still really “owned” by the People (right on!)

II. SECONDARY SOURCES [BLR Ch. 3; Checklist p.70-72] Scholarly commentary on

primary authority, includes legal dictionaries and encyclopedias, Restatements, American Law
Reports, legal periodicals/law reviews and treatises. Most are available on Lexis & Westlaw.

A. When do you use them?

1. When you are researching an area of the law with which you are unfamiliar.

2. When you are looking for primary persuasive authority (law from another
jurisdiction) but conducting a nationwide survey of the law is inefficient.
Secondary sources will cite to primary law from other jurisdictions that may be
relevant to your research issue.
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 3. When you are researching an undeveloped area of the law.

4. When an initial search of primary sources yields either no authority or too

much authority - secondary sources can educate you on your legal issue in away
the may allow you to expand or refocus your research efforts.

B. How to use them? Three basic steps:

1. Use the index or table of contents to find references to material on the topic you
are researching;

2. Locate the material in the main text of the source;

3. Update your research by checking the pocket part.

C. Legal dictionaries - West’s Words and Phrases and Black’s Law Dictionary. I really
don’t like Black’s - it usually doesn’t provide clear definitions and has too much
historical minutiae. But, it’s one of those sources that can be cited almost as if it’s
mandatory authority. Only cite to Black’s , though, if you can’t find a definition in a case
or statute. Word’s and Phrases & Black’s sometimes do, however, contain definitions
actually contained in reported cases.

1. Idea: you need to use a dictionary if you don’t understand the issue you’re
researching; or if you understand the issue, but are confused by the meaning of a
term of art or word that is associated with the issue.

2. How to use: just like Webster’s - look a word up

3. Word’s and Phrases , and sometimes Black’s , both cite to cases. Go retrieve
these cases from the reporters and read the headnotes. Get the topics and key
numbers, write them down, and use them to research your issue in your
jurisdiction.

4. Citation: Black’s Law Dictionary 402 (Bryan A. Garnder ed., 7th ed., West
1999). [ALWD R. 25.1]

D. Legal Encyclopedias [BLR 28-31; sample pages 29-31, 33-4] American

Jurisprudence, Second Edition (“Am. Jur. 2d”) and Corpus Juris Secundum (“C.J.S.”) are
nationwide in scope. There are also state specific encyclopedias, such as Georgia
Jurisprudence (“Ga. Jur.”) and the Encyclopedia of Georgia Law . Most states have their
own state-specific legal encyclopedias.

1. Idea: encyclopedias help you understand your issue better by providing a broad
overview. Kind of like World Book or Encyclopedia Britannica, but limited to
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 legal subjects and terms of art (and darn, no pictures or human anatomy
drawings!!)

2. How to use: Encyclopedias have an index. Use your search terms to find an
appropriate section. Once into the encyclopedia, cases citations are provided.

a. If you are researching state law only, use a state specific encyclopedia
such as Ga. Jur. Obviously, the more specific a book series you can find,
the better. So, if you’re researching Georgia law only, turn first to Ga. Jur.
rather than Am. Jur. 2d or C.J.S., which are much broader.

b. C.J.S. will get you into the West topic and key number system. Write
these down when you find the ones that apply to your issue. C.J.S also
provides citations to case law. If no cases from your jurisdiction are cited
in C.J.S. footnotes, write down the case cites from other jurisdictions that
seem to be relevant to your issue, look these cases up, read the headnotes,
get the topic and key numbers and use them to search in the digest for
your jurisdiction.

c. Many researchers like Am.Jur. 2d (also published by West) because,

like C.J.S., it provides a broad overview of the law and has numerous
citations to primary sources. But, Am. Jur. 2d also cites to applicable law
review articles, A.L.R. annotations, treatises and statutes. The cases are
listed under a heading called “Case Authorities;” the statutes under a
“Statutes” heading; and everything else (A.L.R.’s, etc.) under a heading
entitled “Practice Aids.”

3. Drawback: even though legal encyclopedias are updated with pocket parts and
replacement volumes, they often seem to be behind the times. It never fails; you
will find a section on point with your issue, only to find that the one primary
source citation is to a Vermont case from 1820.

4. Citation: 31A C.J.S. Evidence § 175 (1964); 22 Am. Jur. 2d Damages § 33

(1988). List date in parenthesis to main volume, or if supplemented, also list the
date of publication for the pocket part [ALWD R. 26]

E. Restatements [BLR 39-45; sample pages 43-4, 65-9] Compiled by leading legal
scholars at the American Law Institute (A.L.I.) covering substantive topics like torts,
contracts, agency, property, conflict of laws, etc. Dean Floyd, Professors Brennan and
Milani are members of ALI.

1. Idea: Intended to “restate” the common law rules extracted from court
decisions in the majority of U.S. jurisdictions. Scholarly commentary and
examples are also provided.

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 2. How to use: scan the subject index or table of contents in the main Restatement
subject volumes to find the applicable rules. Rules are organized by section (“ §” )
number.

a. Once a rule is found, read the formal statement of the law (will sort of
read like a statute) and the following comments and illustrations. Citations
to case law will also be listed

b. Turn next to the “Appendix Volumes” that are organized numerically

by §. You will find case summaries from numerous jurisdictions
interpreting the § you are researching. Note that the Appendix volumes are
not cumulative, that is, they only cover certain time periods. Look at the
spine of a volume to find the sections and time periods covered therein.

c. Because Restatements are compiled by the “grand old men and women”
of the law, they carry great weight as authority. Although they are
secondary sources, they can be cited as the “Restatement view” on a
particular issue, which may have been adopted in your jurisdiction as “the
Law.”

3. Citation: Restatement (Second) of Torts § 402A (1978); Restatement (Second)

of Agency § 90 (1965). [ALWD R. 27]

F. American Law Reports [BLR 38-9, sample pages 40-1, 56-63] ( “A.L.R.”) now in
“A.L.R. 5th,” contain “Annotations” chockfull of commentary and citations on a narrow
legal issue.

1. Idea: contains essays on very specific legal issues tracing the development and
judicial treatment of that legal issue in all American jurisdictions.

2. How to use: start with the six-volume ALR Index.

a. A.L.R.’s are a compilation of “Annotations”. Each annotation

summarizes the cases on a specific topic. Cases from both the state and
federal courts and analyzed. There is also a separate A.L.R. Federal that
covers issues of federal law.

b. At the beginning of each annotation, you will find a section called

“Research References” which is a great resource: it provides you with
cites, on your particular topic, to state and federal statutes, legal
encyclopedias, treatises, law reviews, and gives applicable West topics
and key numbers. It also shows sample search terms for use on LEXIS
and WESTLAW. This section also cites to sources from the Total Client-
Service Library (“TCSL”) legal reference source system, which includes
Am. Jur.2d, Am. Jur. Proof of Facts, and Am. Jur. Forms, to name a few.
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 c. After “Research References,” you’ll see a heading entitled
“Jurisdictional Table of Cited Statutes and Cases.” This table cross-
references the cases and statutes cited in that particular annotation on a
state-by-state basis. This is especially helpful if you’re researching law
from just one or two states.

d. Remember to make sure that you have the most recent annotation on
your topic. To do this use the “Annotation History Table” found at the end
of each volume of the six-volume ALR Index. The table will tell you if an
annotation has been superseded (or replaced) by a more recent one.

e. Like all legal research books, you need to use pocket parts at all times.
Both the ALR Index and the individual annotations have pocket parts,
check them both. Remember also that because the annotations contained
in A.L.R.2d are so dated, they are not updated with pocket parts, but with
a series of books called A.L.R.2d Later Case Service. These books are
found on the library shelves next to the A.L.R.2ds.

3. Drawback: A benefit of A.L.Rs is there narrow focus, but this is also a

drawback. If you can’t find an ALR Annotation on your precise issue, then ALRs
are not much use. If you haven’t found an ALR Annotation on your issue, don’t
fret. Look for an article in a legal periodical or law review. These can also provide
an overview of an issue with numerous citations to primary authority.

4. Citation: Anne M. Payne, Sexual Partner’s Tort Liability to Other Partner for
Fraudulent Misrepresentation Regarding Sterility or Use of Birth Control
Resulting in Pregnancy , 2 A.L.R. 5th 301 (1992). [ALWD R. 24] (Don’t put JD
after the author’s name!!)

G. Treatises [BLR 32] - books that describe a particular area of the law that are written
by a leading scholar. Examples include: Corbin on Contracts and Wright & Miller,
Federal Practice and Procedure .

1. Treatises may consist of one volume, or may be a multi-volume set. Brief

single volume treatises are called Hornbooks (Prosser and Keeton on Torts is the
classic example) and West publishes even briefer treatments called “Nutshells.”

2. There are numerous examples of treatises. Search the online public access
catalog at any law library (LawCat at Mercer) to find one for your area of
research. Most treatises contain extensive footnotes with citations to cases and
thus are an excellent way to find primary authority. Don’t forget to check pocket
parts with treatises, too.

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 H. Law reviews and legal periodicals [BLR 32-38, sample pages 36-8] legal magazines
that are useful for finding background information on your issue and to raise your
awareness of current trends in the law. Articles appearing in these magazines may also
advocate legal reform in a particular area, or present a specific legal argument. Articles in
legal magazines usually have numerous footnotes with cites to primary authority.

1. Legal magazines published by law schools are called law reviews. E.g., Mercer
Law Review (Mercer L. Rev.). They are edited by law students and contain
scholarly or theoretical articles that often explore the policies underlying the law.
Generally, law professors, judges or lawyers write “articles”, and law students
write “case notes,” “comments” and “reviews.” If you enjoy the nuances and
subtleties of legal citation, try “grading on” or “writing on” to law review. (It
looks good on a resume, too.)

2. Legal magazines other than law reviews include bar association publications
(E.g., American Bar Association Journal, Georgia Bar Journal (“GBJ”)),
commercial journals (Trial , For the Defense ), and legal newspapers (E.g.,
National Law Journal ). There are tons of these – you’ll see when you start
practicing!

3. How to use: As always, break your issue down into search terms, then use
these terms to search the printed indexes: Index to Legal Periodicals and Books
(ILPB) and Current Law Index (CLP). I prefer to use the electronic legal index
LegalTrac to locate articles. Also, Westlaw and Lexis have most legal magazine
articles available in full-text, but note that some of the older articles are not
available.

4. Citation:
a. Dean M. Richardson, Racism: A Tort of Outrage, 61 Or. L. Rev. 267
(1982).

1) example of consecutively paginated publication (beginning first

issue within a volume with page 1 and then number the pages
consecutively until the end of the volume). [ALWD R. 23] Note
also that you should use ALWD Appendix 5 for proper periodical
abbreviations.

b. Barbara Ward, Progress for a Small Planet, Harv. Bus. Rev., Sept.-Oct.
1979, at 89, 90.

1) Example of a non-consecutively paginated publication. Most

popular magazines are published this way, with each monthly issue
beginning with page 1. See ALWD R. 23.1(d)

III. CASE LAW RESEARCH [BLR Ch.4, Checklist at 121]

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A. Publication of case law - the written opinions of courts are published (usually
appellate level court decisions only) chronologically in books called reporters.

1. Judicial decisions go through three stages of being printed in paper: slip

opinions, advance sheets, and the final bound reporter.

2. Official reporters - published under state or federal government authority,

such as Georgia Reports and Georgia Appeals Reports. May be published by a
commercial publisher under government order (e.g., The Georgia General
Assembly directs Darby Printing to publish Georgia Reports - the official
reporter for the Georgia Supreme Court ).

3. Unofficial reporters (or “commercial reporters”) If a state has an official

reporter, a commercial reporter contains the text of a court’s opinion as published
in the official reporter – but the commercial reporter includes editorial
enhancements for further research and time-saving.

a. Some state and federal court opinions are only published in

commercial reporters (e.g., U.S. District Court opinions in West’s
Federal Supplement; appellate opinions from Florida and Kentucky courts
in West’s Southern Reporter and Southwestern Reporter, respectively).

b. By far the largest commercial reporter is the National Reporter

System published by West. This system is tied into the West Topic and
Key number system and has other West editorial enhancements. The
National Reporter System [BLR 77- Figure 4.4] consists of :

1) Regional reporters - with each volume collecting state case law

from a particular region of the U.S - divided into seven regions.
E.g., Georgia cases are collected in The South Eastern Reporter
(“S.E.”, now into S.E.2d). The regions are based on outdated 19th
century political-geographical constructs. (e.g., Oklahoma court
opinions are published in the Pacific Reporter)

2) Federal court reporters -collecting opinions from the federal

courts, includes Federal Supplement (“F. Supp.” now into F. Supp.
2d) U.S. district courts cases, Federal Reporter (“F.” now into
F.3d) U.S. court of appeals cases, and Supreme Court Reporter,
(“S.Ct.”) U.S. Supreme Court cases.

3) Special federal court reporters - includes Bankruptcy Reporter

(“B.R.”) and Federal Rules Decisions (“F.R.D.”), among others.

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4. Anatomy of a court opinion published in a West reporter [BLR 76-9, sample
pages Popkin v. N.Y. State] West’s editorial enhancements are not “THE LAW”
(Never cite to a headnote in a motion or brief!) and are only provided by West’s
attorney-editors as an aid for time-pressured practitioners. These enhancements
include:

a. Synopsis or editorial summary - a paragraph length summary of facts,

procedural posture and main holdings of an opinion. Also, includes name
of authoring judge and sometimes the judge from the lower court.

b. Headnote paragraphs - sentence-length summaries, each considering a

point of law discussed in the case. Note that each headnote paragraph has
a unique number (in addition to the West Topic & Key Number), and
these numbers are referenced again in brackets in the body of the opinion
where the material summarized in the headnote appears.

c. Key Number classifications [BLR 82 –sample case summary; West

Topic & Key Number handout on Course Webpage] - each important
point of law discussed in an opinion is summarized by a headnote and
assigned one or more of West’s 450 legal subject “Topics.” The point of
law is further assigned a subtopic and pre-defined classification number
(called a “Key Number").

1) West's Topic and Key number system is a pre-existing

classification system (like Dewey Decimal) that attempts to
organize the entire universe of legal issues, and West
attorney-editors try to cram points of law into this system.

2) For a comprehensive list of West’s Topic and Key Number

classification system, see West’s Analysis of American Law:
Guide to the American Digest System, 1994 Ed. (in reference
collection at Z697.L4 W48). West’s Analysis is one of my
favorite reference books to use in practice – it helps to narrow
search vocabulary.

5. Digests [BLR 80-94, note sample pages 105-20; Class Five PowerPoint
presentation on the Section One ILR Course Webpage.] You can use West Topics
and Key numbers to find other cases discussing similar points of law in printed
finding tools published by West called “Digests.” These books collect the
paragraph summaries (headnotes) found at the beginning of cases printed in West
reporters and organizes them by Topic and Key Number.

a. Find the Digest series that applies to the jurisdiction in which

you are researching, e.g., Georgia Digest or Federal Practice Digest (See
list at BLR 84-85)
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 b. Start with the "Descriptive-Word Index" for the digest series
you are using to find applicable Topics and Key Numbers.

c. Find the digest volume for your topic by scanning the spines of
the applicable digest series. Turn to your Topic, note that at the beginning
there is a general and detailed outline of the Topic, subdividing the topic
by point of law and providing relevant Key Numbers.

d. Turn to the relevant Key Number, note that the headnote

paragraphs appear in the Digest in hierarchical order: federal cases before
state cases; newer cases before older cases. At the end of each headnote
paragraph is a citation to the case from which it is taken. Note that this
citation will usually not follow the proper Bluebook citation format.

e. Update [see BLR 89-92] – check the pocket part (or separate
supplement) for the applicable digest. Also check the closing table in the
front of a digest volume or pocket part. That table will tell you the last
volume and page number of a reporter covered by the digest volume or
pocket part. Then go to the volumes of that reporter which have been
published since the ones listed in the closing table, and check the “mini-
digests” in the back of the reporter volume to see if any new cases are
listed under your Topic and Key Number.

6. “Unpublished opinions”- Some opinions rendered by courts are not designated

for publication in a West or official reporter. Thus, these cases are called
“unreported” or “unpublished” opinions. These cases can generally be found in
computerized databases (or official court websites) with unique citation formats
(using a * or ¶, rather than page number).

** Be careful when using unreported cases in a memo or brief as

controlling authority, though, because the rules of some courts expressly
forbid citation thereto, (e.g., Georgia courts, see below at 14-17) or require
that you attach a copy of the case. See ALWD, Appendix 2 for state-by-
state listing of local court citation rules (also check www.alwd.org for
updates to these rules.)

B. Cases as finding tools - because of our common law system based on legal precedent,
decisions of courts are based on rules extracted from other cases. So, by finding "one
good case" on point with your issue, that case will contain citations to other cases that
might apply. Of course, finding "one good case" will usually be the most time consuming
(and possibly frustrating) part of a legal research project.

1. Use the West Topics and Key Numbers assigned to the “one good case” to
access a digest and find other cases covering the same or similar issues.
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 2. “Shepardizing” (see below at 26) the “one good case” will often lead the way
to other applicable authority. If you check a Shepard's citator for your case, the
other cases that cite to your case listed in Shepard's will often include a notation
showing the headnote number from your case that is also discussed in a citing
case. Then you will know which court opinions might be useful to you because
they also discuss the point of law that is the subject of your research issue.

C. The structure of state courts. [BLR 75, fig 4.3] A good listing of all state courts and
applicable official and regional reporters can be found in ALWD, Appendix 1, “Primary
Sources by Jurisdiction” (beginning on p. 333)(2d ed.) and the Blue Book "blue pages" at
Table 1 ("T.1 ") beginning at p.183)(17th ed.) The proper jurisdiction of a state court is
usually set forth in that state's constitution and statutes.

D. Georgia Courts [Class 4 handout; ALWD 342; BlueBook 198] - typical three-part
hierarchy (including several specialized courts with limited jurisdiction), judges in
Georgia are elected. (See 1983 Constitution of Georgia, Article VI, Section VII).

1. Georgia Supreme Court (http://www.gasupreme.us/) - court of last resort, 7

Justices elected for six year terms (Justice Thompson is a Mercer Law grad).
Exclusive appellate jurisdiction in cases involving constitutional issues, contested
elections, felonies in which the death penalty is imposed, titles to land, wills,
Habeas corpus, equity, divorces and alimony, extraordinary remedies. Also
considers certified questions and certiorari from Ga. Court of Appeals.

a. where published - all opinions of the Georgia Supreme Court are

published in the official reporter Georgia Reports and in West’s South
Eastern Reporter:

1) Fulton County Daily Report – (“FCDR”) first place a Georgia

case is published in print, runs about two weeks behind.

2) Georgia Reports – (“Ga.”) official reporter, published by Darby

Printing Company in Atlanta for the State of Georgia. (Published
by Harrison until 1984.)

3) South Eastern Reporter ("S.E."), now into S.E.2d.

4) Also available in databases found in the Georgia state directory

on Westlaw and Lexis, and for free at http://www.gasupreme.us/

5) offprint reporter – West’s Georgia Cases(still abbreviate S.E.),

contains just Georgia cases from the South Eastern Reporter .

14
b. abbreviation: (Ga.) (see ALWD, Appendix 1 at 342)

c. citation: Because Georgia Supreme Court opinions are published in

both official and unofficial reporters, as a general rule you should cite to
both reporters. Example: Hopkins v. Hamby Corp., 273 Ga. 19, 538
S.E.2d 37 (2000). Remember both reporters contain the exact same
opinion, but only the West regional reporter gives you extra stuff - like
headnotes and an editorial synopsis. Note the absence of a court
abbreviation in the parenthetical, because the “Ga.” cite makes it obvious
that it’s a Georgia Supreme Court citation.

1) Citing to both reporters is called a parallel citation. West

Reporters always list parallel cites to the official reporters, above
the case name. You can also get parallel cites from Shepard's (see
below at 20)

2) ALWD tells you to provide parallel citations “only when

required by local rule or custom . . . [.]” (R. 12.4(c)(2)). Georgia
Supreme Court Rule 22 (quoted in ALWD, Appendix 2, at 382)
states that “Georgia citations must include volume and page
number of the official Georgia reporters (Harrison or
Darby).”(In accord, Georgia Court of Appeals Rule 23(c)) So,
there is no Georgia court rule requiring parallel citations to the
South Eastern Reporter,

3) The Bluebook Rule 10.3.1(a) & Practitioner’s Notes P.3 (blue

pages in the front), state that “all citations to cases should be to the
reporters preferred by local rules, including any parallel citations to
the official state reporter, if required.”

4) If you only cite to a Georgia Supreme Court case using a

citation to the South Eastern Reporter (i.e., citing the case in a
motion or brief in another state) be sure that "Ga." is added to the
parenthetical so that the reader will know it is a case decided by
the state's highest court. So, the example citation above would be:
Hopkins v. Hamby Corp., 538 S.E.2d 37 (Ga. 2000) (See ALWD
Rule 12.6(e) & Appendix 3; Blue Book Prac. Notes P.3, Rule
10.4(b); State abbreviations at Table 10.)

d. applicable digest – Georgia Digest - now in 2d series, 1st series covers

period from 1792-1980.

15
E. Structure of federal courts [BLR 74, Class 12 PowerPoint presentation available on
course webpages] - a similar three-part hierarchy, established under Article III of the U.
S. Constitution.

1. Supreme Court of the United States (http://www.supremecourtus.gov/) -

highest court in the U. S., nine justices, appointed for life terms by the President
and subject to approval by 2/3 of the Senate. Can grant certiorari to review cases
from U. S. courts of appeal.

a. Where published:

1) official reporter: U. S. Reports ("U. S.");

2) commercial reporters: Supreme Court Reporter (“S. Ct.”)(West's

reporter), United States Supreme Court Reports, Lawyer’s Edition,
(“L. Ed.”)(Lexis) United States Law Week (“U.S.L.W.”) (collects
recently decided cases in looseleaf binders).

3) Opinions are first published as slip opinions. Recent slip

opinions (since 2000) are now available at:
http://www.supremecourtus.gov/opinions/opinions.html

b. Citation: Pike v. Bruce Church. Inc., 397 U.S. 137, 90 S. Ct. 844, 25 L.
Ed. 2d 174 (1970). You only need to cite to U.S. Reports, but most
lawyers provide parallel cites to S.Ct. and L. Ed. (See ALWD R. 12.4(b))

c. Applicable digest - West's U.S. Supreme Court Digest and Federal

Practice Digest.

2. U. S. Court of Appeals - The U.S. is divided into 11 circuits with a court of

appeals for each circuit, plus a D.C. and a Federal Circuit (total of 13 – see map
BLR 74; see also http://www.uscourts.gov/links.html ). Georgia is in the 11th
Circuit. The U. S. Court of Appeals reviews cases on appeal from the U. S.
District court. Judges are appointed for life terms by the President and subject to
approval by 2/3 of the Senate.

a. Where published: West's Federal Reporter, (now “F.3d”) Also,

Westlaw & Lexis, go to http://www.uscourts.gov/links.html for links to
individual court sites. Many courts post reported and unreported opinions
on their websites.

b. Citation: Smelser v. Norfolk S. Ry., 105 F.3d 299 (11th Cir. 1997).
[ALWD R. 12.6]

16
 c. Applicable digest: Federal Practice Digest, State Digests where court is
located.

3. U. S. District Courts - the trial courts of the federal system.

a. jurisdiction over all controversies arising under the U. S. Constitution

and federal statutes ("federal question jurisdiction"), and over lawsuits
between citizens of different states involving disputed amounts in excess
of $75, 000 ("diversity of citizenship jurisdiction").

b. District judges are appointed for life terms by the President and subject
to approval by 2/3 of the Senate. Exceptions to this requirement are U. S.
Bankruptcy Court judges and U. S. Magistrates who are appointed by
federal judges for fourteen-year and six-year terms, respectively.

c. Note that the larger states are divided into sub-districts, E.g. Georgia has
a Northern, Middle and Southern U.S. District Court; Kentucky has an
Eastern and Western U.S. District Court. The U.S. District Court for the
Middle District of Georgia sits in Macon: http://www.gamd.uscourts.gov/

d. Where Published: West's Federal Supplement (“F. Supp.”, now F.

Supp.2d) and Federal Rules Decisions (“F.R.D.”) (Collecting cases
deciding issues on federal rules, such as the Federal Rules of Civil
Procedure and Federal Rules of Evidence. Bankruptcy Reporter (“B.R.”)
Also, Westlaw & Lexis, go to http://www.uscourts.gov/links.html for links
to individual court sites. Many courts post reported and unreported
opinions on their websites.

c. Citation: Tetra Technologies, Inc. v. Harter, 823 F.Supp. 1116 (S.D.

N.Y. 1993). [ALWD R. 12.6]

d. Applicable digest: Federal Practice Digests, state digests where court is

located.

4. Unpublished (or unreported) federal court opinions – Paradoxically, West

started publishing a printed series of “unpublished” federal courts of appeal
opinions called Federal Appendix in 2001.

a. Under FRAP 32.1, attorneys may cite to “unpublished cases” in federal

courts. The court, however, has the discretion to decide what weight to
accord an unpublished decision.

a. federal district courts and court of appeals unpublished opinions are

available on Westlaw, Lexis, and in some cases on websites maintained by
the courts themselves.

17
 b. Statistics from Administrative office of U.S. Courts
(http:/www.uscourts.gov/judbus2002/contents.html) - In 2002 there were
27,758 cases terminated on the merits (after oral hearings or submission
on briefs). There were 5,336 written opinions published - just 19%.
21,151 written opinions - 76% -were unpublished, most of which were
also unsigned. When you include the "written, unsigned, without
comment" cases, 80% of U.S. Court of Appeals’ opinions were
unpublished.

c. There is much discourse among the federal courts, however, regarding

the precedential value of unreported cases. (See generally, Stephen R.
Barnett, From Anastasoff to Hart to West's Federal Appendix: The
Ground Shifts Under No-Citation Rules, 4 J. App. Prac. & Process 1
(2002).) Remember: Always check the court’s local rules!

IV. STATUTES [BLR Ch. 6] - Like cases, there are both state and federal statutes. Congress
passes federal statutes; state statutes are passed by state legislatures. Whether a bill is state or
federal, it must be signed into law by the relevant chief executive (i.e., the governor or the
President). Although law school emphasizes the learning of black letter rules derived from case
law, as a practicing lawyer (depending on your specialty) you will frequently deal with both state
and federal statutes.

A. How published – federal and Georgia statutes are basically published in three steps:

1. Published first as a separate document (“slip law”) after a bill becomes a law.
When a fed law is passed it gets a Public Law Number. No slip laws for Georgia.

2. Included in a chronological listing of all statutes passed within a session of the

legislative body, often referred to as “session laws.”(U.S. = Statutes at Large;
GA= Georgia Laws)

3. Reorganized by subject matter into what is called a code. This is the final
version and codification of the law. Statutes are arranged numerically in codes,
usually by title, chapter and section.

a. Official codes - Although each jurisdiction has only one “code,” that is
one set of statutes in force, some jurisdictions have both an official
(arranged by the government to be published) and unofficial codes. The
official federal code is the United States Code (“U.S.C.”) published by the
Government Printing Office (“GPO”).

b. Annotated codes - most jurisdictions have an “annotated code” which

contains the text of the statutes, as well as editorial enhancements. An
18
annotated, but unofficial federal code, is the United States Code Annotated
(“U.S.C.A.”) published by the West Group. But The Official Code of
Georgia Annotated (“O.C.G.A.”) is both official and annotated .

** Annotated codes are one of the best research tools available for
the practitioner, because not only do they provide the primary
statutory material, but also references to cases, regulations and
secondary sources - all in one package.

19
B. Statutory interpretation- courts interpret statutes by applying them to a set of
facts presented in a lawsuit. Under the well-accepted doctrine of judicial review,
courts also can determine whether a statute is constitutional. Under our system of
“checks and balances,” if a court finds a statute to be unconstitutional, then the
legislature can amend the statute, or strike it and enact a new one to pass
constitutional muster. There is a tremendous amount of case law dealing with a
court’s interpretation of a statute. Here are the basic rules:

1. Plain meaning doctrine - if the meaning of a statutory word or phrase

is plain on its face (in other words, obvious) the court will use the
everyday commonsense definition of the word or phrase in trying to figure
out what the legislative body meant when it enacted the statute
(“legislative intent”).

2. Rules of statutory construction - also called “canons of construction,”

specific statutes enacted by the legislature declaring how statutes should
be interpreted.

3. Determining intent through legislative history - if the meaning is not

clear from the face of a statute, the court will have to determine the
legislature’s intent by looking back at the history of the law when it was
passed. In other words, the court will have to see if the legislative body
issued written reports or gave speeches, etc., in which the statute was
discussed. From that background, the court will use its best efforts to
determine legislative intent. This is known as doing a legislative history
search. Note, however, that legislative history is not accorded much
weight by some judges, since legislators often consider competing policies
when drafting a new law.

4. “filling in the gap”- note also that the legislative body sometimes
intentionally leave “blanks” in a statute for courts to interpret over time.
Statutes may be vaguely written to allow courts to decide what conduct, or
which class of persons, should fall within the statute’s purview.

C. State statutes - most have annotated codes, and the process of publishing
statutes is the same as the feds. Check ALWD, Appendix 1, “Primary Sources by
Jurisdiction” (beginning on p. 333)(2d ed.) and the Blue Book "blue pages" at
Table 1 ("T.1 ") beginning at p.183)(17th ed.) for a complete list of all 50 states’
codes, as well as proper name and citation format of each state’s code.

D. Georgia Statutes - laws enacted by the Georgia General Assembly, the

formal title of the legislature. The Ga. General Assembly was formed in 1777 and
is older than the United States Congress. At the time of its origin, the legislature
consisted of a single house, but in 1789 it became a bicameral body, consisting of
a House of Representatives and a Senate.
1. The House of Representatives and Senate operate with similar
powers, except that appropriation bills must originate in the House, while
confirmation of the Governor’s appointments rests with the Senate. The
concurrence of both bodies is necessary before any bill may become a law.

2. The House of Representatives has 180 members and the Senate has 56.
Two-year terms of office apply to both houses, and the entire
membership of each body is elected at the same time.

3. Website: http://www.lexis-nexis.com/hottopics/gacode/default.asp
(includes a searchable, unannotated version of the Official Georgia Code –
maintained by Lexis.)

4. How published:

a. Session laws – titled Georgia Laws, chronological publication of

laws passed by the General Assembly during a specific session.
Print version goes back to 1820 (Furman Smith Law Library has
them all!)

1) useful for learning the exact language of a statute section

when passed - & and the way the language has changed
since; and

2) show the context in which the relevant statute section

was passed - allow you to look at all other statute sections
passed at the same time.

3) Available online through Galileo

b. Official Code – Official Code of Georgia Annotated (O.C.G.A.)

Also called the “Code of 1981,” because the Georgia code was
recodified in1981 (becoming the OCGA), and became effective in
1982. Included new numbering scheme for all the statutes.

1) published by Lexis, includes case annotiations &

citations to relevant secondary sources.
2) has general and title indexes
3) has a history line showing amendments & other
changes, also includes more legislative history information.

c. Unofficial codes:

1) Georgia Code Annotated (Ga. Code. Ann.) also called

the “Code of 1933” and the “Harrison Code.” Still uses the
 old (pre-1982) numbering scheme. Published by the
Harrison Company, which was recently purchased by West.
(The Georgia Code Annotated is now defunct – bought by
West, so Code of Georgia Annotated will replace it. (See
below)

2) West Code of Georgia Annotated - New in 2003, uses

same numbering scheme as OCGA. Has more case
annotations than either of the other codes, also includes:
(i) references to relevant topics and key numbers &
(ii) references to the state administrative code
(regulations)
(iii) has general and title indexes
(iv) has a history line showing amendments &
other changes, also includes more legislative history
information

5. Organization - Titles usually cover a broad area of law and span part of
a volume, an entire volume or more than one volume. Chapters are
subdivisions or sub-topics within a title. Sections are the specific laws or
statutes.

a. E.g., Public drunkenness statute in Georgia code (O.C.G.A.

§16-11-41) = Title 16 : Crimes and Offenses (DON’T CONFUSE
WITH VOLUME 16!!), Chapter 11: Offenses Against Public
Order and Safety,
Section 41: Public drunkenness

b. Cite as OCGA § 16-11-41.” Note that AWLD & the Bluebook

says to cite the official code as: “Ga. Code. Ann.” But, the
O.C.G.A. is the official code for Ga, and is cited as O.C.G.A. by
everyone in the state.

6. Attorney General Opinions – An opinion interpreting state law (when

no case law exists) issued by state government’s chief counsel at the
request of a state government entity or agency. AG opinions are not
binding on a court, but are generally accorded some persuasive authority.
The Furman Smith Law Library owns print and/or microform copies of Ga
AG opinions from 1878 to present. Opinions since 1994 are online at:
http://www.ganet.org/ago/opinions.html

E. Federal Statutes [BLR Ch. 6]

1. Codifications - codes are accessed by way of an index. Get a good

search term, and search the general index for the appropriate statutory
section. All the codes have a popular name index, allowing you to look
up a statute by its commonly known name, rather than the specific title
and section numbers(also good source for amendments). All codes also
contain the text of the U.S. Constitution.

a. United States Code (“U.S.C.”) official unannotated code.

Gathers together all general, in force statutes of the United States
into fifty different topics.

1) issued every six years (current version - 2000)

2) supplements issued during interim
3) good indexing (general and popular name) and subject
arrangement of U.S. laws
4) includes a history line and some legislative history
information.
5) too slow to be published, doesn’t integrate statutory text
with cases that comment upon the law.
6) updating: no pocket parts, only has annual,
noncumulative supplements. Need to look in all
supplements to check for changes in a statute (what a
hassle!)
7) available for free at http://www.gpoaccess.gov
8) citation example: 8 U.S.C. § 1423 (2000). [see ALWD
R. 14]

b. United States Code Annotated (“U.S.C.A.”) published by the

West Group. Provides comprehensive coverage of cases related to
the statute you’re interested in.

1) provides West headnotes of cases related to your section

of the law. Attempts to catalog every case pertinent to the
statutory section
2) West topics and key numbers provide access to the West
research system.
3) provides citations to: (a) relevant administrative rules
and regulations; (b) secondary sources; and cross-
references to other statutes in the U.S. Code.
4) includes a history line and some legislative history
information.
5) update: has pocket parts & supplementary pamphlets
6) good index and conversion tables for finding Public Law
Numbers and Statutes at Large citations.
7) popular name index - very useful
8) Available on Westlaw
9) citation example: 12 U.S.C.A. § 1426 (West 1994). [see
ALWD R. 14]
 c. United States Code Service (“U.S.C.S.”) formerly published
by Lawyer’s Cooperative, but is now published by Lexis. Reprints
every section of the U.S. Code, and at the end of each section,
gathers together relevant cases.

1) selects those cases that are “important” in interpreting

your statute & thus provides fewer annotations
2) provides citations to administrative materials (e.g., Code
of Federal Regulations)
3) provides narrative material and other aids
4) provides entrance to the Total Client Service Library
(“TCSL”) legal reference system (citing to ALR
annotations and other former Lawyer’s Coop products-
Am. Jur., Proof of Facts, form books, etc.)
5) includes a history line and some legislative history
information
6) good index and tables
7) update: has pocket parts & supplementary pamphlets
(“Later Case & Statutory Service”)
8) Available on Lexis
9) citation example: 12 U.S.C.S. § 1710 (Lexis 2000). [see
ALWD R. 14]

d. U.S.C.A. vs. U.S.C.S. - both are good products, and the

centerpieces of large, comprehensive research systems. If possible,
check both since the annotations are products of two different
editorial judgments.

1) U.S.C.S. prints actual language of the U.S. Statutes at

Large.
2) U.S.C.A. prints U.S. Code version
3) verify everything - don’t rely on annotated codes, check
back to the U.S. Statutes at Large. Sometimes items that
may indicate legislative intent (i.e., perambles or
introductions) are dropped from the annotated codes and
thus can only be found in the Statutes at Large.

2. Session laws

a. United States Statutes at Large (“Stat.”) - compiles new

legislation of each session of Congress into one volume, printing
laws in chronological order of passage.
1) has index and tables
2) provides Public Law Numbers for bills and U.S. Code
designations
 3) includes some legislative history information
4) too slow to be published -can lag 3 to 4 years behind the
session covered
5) updated by individually published slip law pamphlets
6) citation: Federal Advisory Committee Act, Pub. L. No.
92- 463, 86 Stat. 770 (1972). [see ALWD R. 14.7]

b. United States Code Congressional and Administrative News

Service (“U.S.C.C.A.N.”) - published by West Group.
Arrangement of laws by Public Law Number, published after they
are enacted.

1) contains a selected legislative history, including House

& Senate Reports and references to the Congressional
Record.
2) includes an advance sheet service for newly enacted law.

IV. SHEPARD’S & KEYCITE CITATORS [BLR Ch.5; see “Shepard’s Citation
Service” PowerPoint at http://www.lexisnexis.com/lawschool/tracker/link.asp?lid=80
and; “Using KeyCite on Westlaw” pdf guide at
http://west.thomson.com/documentation/westlaw/wlawdoc/web/kcwlcg06.pdf

A. Shepard’s is a multi-volume, multi-series set of maroon books, commonly

referred to as a “citator.” The sole purpose of Shepard’s is to list every source
(well, almost every) that has ever cited any given case. Shepard’s also publishes
citators for federal and state statutes, federal regulations, the Restatements, law
reviews, and other specific subject areas. The process of using Shepard’s is
referred to among practitioners as “Shepardizing” or “cite-checking.” As a
newly-licensed attorney, it is highly likely that you will be called upon by your
superior (whether a law firm partner, judge or prosecutor) to Shepardize cases and
statutes, sometimes at the last minute - get to know the system!

1. When to use Shepard’s ?

a. To determine who else has cited your case, statute, law review
article, etc - as soon as you’ve found an on-point case or statute,
use Shepard’s to find other relevant authority.

b. To update your case or statute, i.e., determine if it has been

reversed on appeal (cases) or amended/repealed (statutes).

3. To find parallel citations for state cases - remember, many states

(e.g., Georgia) have official reporters for case law, but the West
regional reporters (e.g., S.E.2d) also contain the exact same cases
(avec key numbers, headnotes, etc.). So, sometimes you may have
 a citation to a case in an official reporter, but you will also need to
provide the proper parallel cite to the appropriate regional reporter
under a court’s local rules. Shepard’s will thus give you the proper
“parallel” citation to the regional reporter (or conversely, to the
official reporter).

2. Why use Shepard’s ? As we have discussed throughout this course,

updating the law is extremely important. ALWAYS CHECK pocket parts
when available in digests, annotated statutory compilations, etc., and
Shepardize cases and statutes to make sure they are still “good law.” Also,
if you have an old case, Shepard’s can point you to a more recent case.
Given the choice, you should cite the most recent case, from the highest
court, you can find.

3. Online services - Remember, the print version of Shepard’s is 1-4

months out-of-date. Thus, many attorneys prefer to Shepardize cases by
using Lexis, because Shepard’s online is current within twenty-four hours.
Also, online Shepard’s eliminates the need to check those pesky
supplemental pamphlets that can be easily misshelved in a library. Online
Shepard’s is also much easier to read and less cryptic than the print
version, using colorful icons rather than the case treatment codes. Perhaps
the most advantageous feature of Shepard’s online is that cited cases can
be directly accessed through hyperlinks.

4. Note that Shepard’s is not available through Westlaw, which has its
own citator service called KeyCite, which uses its own flag iconography
to show the status of a case.

5. How to use print Shepard’s

a. Locate the volumes of Shepard’s which cover the reporter (or
statute, etc.) In which your original case appears (e.g., Shepard’s
Georgia Citations or Shepard’s South Eastern Citations )

b. Remember, Shepard’s is not cumulative, so you may have to

check 2 or 3 bound volumes and another 2 or 3 paperback
supplemental pamphlets (or “advance sheets”). To see which
pamphlets you should be checking, look on the front cover of the
latest pamphlet. It has a section “What Your Library Should
Contain” listing the Shepard’s volumes necessary for a complete
search.

c. Once you have the proper Shepard’s volumes, open to the page
that covers the volume number of the reporter in which your case
appears. Scan the tabular listings until you find the page number of
your case. If your case’s page number is not there, then your case
 has not been cited. If it does appear, then read the listing of cited
cases. These cite are organized by jurisdiction.

d. Look for any case history and/or case treatment codes. If you
forget what these notations mean, go to the first few pages of the
Shepard’s volume and refer to the table that explains these codes.

e. The most important case history and treatment codes to

remember are: M (modified); R (reversed); O (overruled); V
(vacated). Theses codes mean that something significant has
happened to your case.

f. If one of these codes appear after one of the cited cases, and it is
not favorable to your position, don’t freak out! Go get that case
and read it. Your case may still be good law, because the reviewing
court’s reversal may have been on a different issue. Cite such a
case using the explanatory phrase rev’d in part on other grounds
(see ALWD R. 12.8)

g. Headnotes- one of the best timesaving features of Shepard’s is

that listed citations may have superscript numbers referring to the
specific headnote number of the cited case. You can really narrow
your search by referring only to the cases that cite to the headnote
that pertains to your specific issue

h. Shepardizing statutes- can be done to see if any courts in your

jurisdiction have interpreted your statute, or whether a statute has
been amended or repealed. But since this information is contained
in annotated codes (see below), I’ve never found Shepard’s for
statutes to be that useful (but many people do, however).

6. How to use Shepards on Lexis.com [BLR 136-139]:

a. Click on the “Shepard’s-Check a Citation” tab at the top of the

screen.
Note: You can also move into Shepard’s directly from a case you
are viewing by clicking on the “Shepardize” link at the top of the
screen.

b. Type the citation in the open field.

c. Click the radio button to select the “KWIC” or the “FULL”

report format (FULL is the default).

1) “Shepard’s for Validation” (the KWIC format) helps you

determine whether your case is still “good law,” and
retrieves all subsequent appellate history, citing references
 that contain positive or negative treatment of your case, and
new citing cases that have yet to be analyzed by Shepard’s
editors; or

2) “Shepard’s for Research” (the FULL format) shows you

the universe in which your case has been cited. This set of
results will include all prior and subsequent history and
every citing reference from case law, law reviews,
periodicals, annotated statute, and annotations.

d. Click “Check” to process your request.

e. Review your results screens, which include:

1) “Shepard’s Summary”- presents a synopsis, showing

you why your case received the Shepard’s Signal
Indicator shown. You can move to any grouping in the
Shepard’s Summary by clicking on a hyperlink, then
click the Return to Shepard’s link to return to your
Shepard’s report.
2) “Prior History and Subsequent Appellate History”-
provide short explanations of what happened at each
stage of the case (e.g., writ of certiorari denied, or cost
and fees proceeding).
3) “Citing Decisions” – numbered and organized by
jurisdiction and court, then sorted by date in reverse
chronological order.
4) “Shepard’s Navigation Bar” - located at the bottom of
the screen, is like the electronic table of contents
of your Shepard’s report. Click on the drop-down menu
next to the Cites box to view the report sections, then
highlight to select the portion of the report you want to
see.
5) Following the “Shepard’s Summary” are the “history
citations.” After the history citations, you find the list
of “Citing Decisions” which are arranged by
jurisdiction and court, followed by secondary
authorities.
The total number of citing references is provided in the
parentheses at the beginning of the “Citing Decisions”
section.

f. graphical Shepard’s Signal indicator icons (compare KeyCite

flags) - provide graphic indicator of your case’s precedential
status:
 1) red octagon (stop sign) - the red signal is for “warning”,
indicating your case has received negative treatment, e.g.; it
has been reversed or overruled.
2) yellow triangle (yield sign) - “caution”, indicating your
case has received possible negative treatment, e.g.; it has
been criticized or limited.
3) green diamond surrounding a plus sign – “true
positive” indicates your case has received positive
treatment, e.g.; it has been followed or affirmed.
4) Blue circle surrounding letter A - citing references
with analysis available.
5) Blue circle surrounding letter I - case cited only, no
discussion.

g. Customizing Shepard’s Display (like “Limit KeyCite Display”)

Click the “Custom” link at the top of the report to display the
“Custom Restrictions Form.” Can limit display by: (1) type of
analysis; (2) jurisdiction; (3) West headnote; (4) date.

B. KeyCite [BLR 137-141] – West’s online response to Shepard’s

1. How to use - you can access KeyCite using one of the following
methods:

a. From the Start Menu, type a citation in the “KeyCite a citation”

text box and click GO.
b. Click the Tasks drop-down list in the toolbar and select
“KeyCite a Citation.” The KeyCite a Citation dialog box is
displayed. Type a citation in the Enter a Citation text box and
click OK.
c. Access KeyCite directly from a case you are viewing.

1) If the case has negative history that may affect its

precedential value, you will see a red or yellow case
status flag in the document header. If the case has some
history but it is not known to be negative history, a blue
"H" will be displayed in the document header. Click the
flag or the blue "H" to access KeyCite and display the
history of the case.
2) red flag warns that the case is no longer good law for at
least one of the points it contains.
3) yellow flag warns that the case has history but hasn't
been reversed or overruled.
4) blue "H" indicates that the case has some history.
5) green “C” indicates case has citing references but no
direct or negative indirect history
 d. Displaying “The History of the Case” - When you first access
KeyCite, the history of the case is displayed (can also be accessed
by clicking the blue “History” hyperlink on the left-side frame.)
The history is divided into the following categories:
1) “Direct History” traces the same case through the
appellate process and includes prior and subsequent history.
2) “Negative Indirect History” lists cases outside the direct
appellate line that may have a negative impact on the
precedential value of your case.
3) “Related References” lists cases that involve the same
parties and facts as your case, whether or not the legal
issues are the same.

e. Displaying “Citations to the Case”- To retrieve citing

references for your case, click blue “Citing References” hyperlink
on the left-side frame. A list of all cases on Westlaw and
secondary sources, such as law review articles and ALR
annotations that cite your case is displayed. Sometimes you will
have a case cited by hundreds of other cases and secondary
sources. KeyCite tries to make long citation lists more manageable:

1) The citations most likely to be essential are listed first;

namely, the negative citing cases that may limit your case's
precedential value, followed by positive citing cases ranked
in order of depth of treatment. You can tell which cases on
the list are most likely to be important by noting the
number of “depth of treatment stars” assigned to each
group of cases (see below)

2) “Limit KeyCite Display” button – on bottom of screen,

use to limit the list of citing cases to references from a
particular jurisdiction, date or West publication; to those
providing a specified depth of treatment; or to those
discussing points of law summarized in specific headnotes
or classified under specific topics.

f. KeyCite Depth of Treatment Categories:

4 Stars Examined Indicates an extended discussion of the cited case, usually

more than a printed page of text.
3 Stars Discussed A substantial discussion of the cited case, usually more than a
paragraph but less than a printed page.
2 Stars Cited Some discussion of the cited case, usually less than a
paragraph.
1 Star Mentioned A brief reference to the cited case, usually in a string citation.
2. KeyCite for Statutes –

a. To view the history of a displayed statute, click blue History

hyperlink on the left-side frame. Statute history lists cases affecting
the validity of a statute plus legislation affecting the statute, which
is divided into the following categories:
1) Updating Documents - lists citations to session laws that
amend or repeal the section.
2) Pending Legislation - lists citations to pending bills that
reference the section (federal statutes and statutes from
selected states).
3) Credits - lists in chronological order the citations to
session laws that have enacted, amended, or renumbered
the section.

b. West Flag icons for statutes – When viewing the text of a

federal statute on Westlaw, remember that the KeyCite Red flag
icon denotes the statute or regulation has been amended by a
recent session law or rule, repealed, superseded, or held
unconstitutional or preempted in whole or in part. Yellow flag icon
signals that

1) the statute has been renumbered or transferred by a

recent session law;
2) an uncodified session law or pending legislation
affecting the statute is available (KeyCite provides a
hyperlink to pending legislation – not on Shepards!); or
3) the statute was limited on constitutional or preemption
grounds or its validity was otherwise called into doubt, or
4) a prior version of the statute or regulation received
negative treatment from a court.