How to Shepardize on Westlaw: A Complete Guide to Validating Legal Authority
Shepardizing is one of the most critical skills in legal research, and mastering this process on Westlaw can significantly enhance the quality and reliability of your legal work. Whether you are a law student, paralegal, or practicing attorney, understanding how to shepardize on Westlaw will help you make sure the cases and statutes you rely upon are still good law and haven't been overruled, criticized, or distinguished by subsequent court decisions Simple as that..
What Does It Mean to Shepardize?
Shepardizing refers to the process of checking the validity and current status of legal authorities, primarily case law, using citation research tools. The term originated from the Shepard's Citations service, which was founded by Frank Shepard in 1873 and became the gold standard for validating legal authorities long before the digital age.
When you shepardize a case, you are essentially asking several important questions: Has this case been cited by other courts? Here's the thing — has it been criticized or distinguished in later decisions? Consider this: is it still good law? Has it been overruled or reversed? This process is essential because legal authorities can change status over time—a case that was good law when decided may later be modified, limited, or overturned by subsequent court decisions or legislative changes.
Westlaw currently offers this functionality through its KeyCite service, which has replaced the traditional Shepard's brand but serves the same essential purpose. Understanding how to handle and interpret KeyCite results is therefore synonymous with learning how to shepardize on Westlaw in modern legal practice.
Why Shepardizing Matters in Legal Research
Before diving into the step-by-step process, it is the kind of thing that makes a real difference. Relying on a case without checking its current status can lead to serious consequences in legal practice The details matter here..
Using overruled or negatively criticized cases in briefs, motions, or legal memoranda can damage your credibility with the court and harm your client's case. On top of that, judges expect attorneys to present current and valid authority, and presenting a case that has been implicitly or explicitly overruled can result in sanctions or, at minimum, a weakened argument. Additionally, shepardizing helps you discover additional supporting authorities by identifying cases that have cited your target case favorably, expanding your research scope and strengthening your arguments.
Step-by-Step Guide: How to Shepardize on Westlaw
Step 1: Access Westlaw and Locate Your Target Authority
Begin by logging into your Westlaw account and navigating to the search interface. On the flip side, you can shepardize any legal authority, including cases, statutes, regulations, and secondary sources. For this guide, we will focus on shepardizing a case, as this is the most common application That's the part that actually makes a difference..
To start, you can either search for your case directly using the case name or citation, or you can access a case from within your existing research. If you already have a case open in Westlaw, you will see the KeyCite information displayed prominently at the top of the document.
Step 2: Initiate the KeyCite Search
There are several ways to shepardize on Westlaw:
Method A: Using the KeyCite Button When you have a case open, look for the "KeyCite" button or tab in the navigation menu. Clicking this will generate a comprehensive citation report for the case That's the part that actually makes a difference..
Method B: Using the KeyCite Search From the Westlaw home page, you can select "KeyCite" from the search options and enter your case citation or case name. This will take you directly to the KeyCite results page.
Method C: Using the "C" Command For experienced users, you can simply type "KeyCite" or "KC" followed by the citation in the search bar. Here's one way to look at it: entering "KC 347 U.S. 483" will bring up the KeyCite results for Brown v. Board of Education.
Step 3: Interpret the KeyCite Status Signals
Once you initiate the KeyCite search, you will see a color-coded status signal that provides an immediate overview of the case's current validity. Understanding these signals is crucial:
- Red Signal: This indicates that the case has been explicitly overruled, reversed, or vacated. You should not rely on this case as good law.
- Yellow Signal: This means the case has been criticized, questioned, or distinguished in subsequent decisions. Proceed with caution and review the negative citations carefully.
- Green Signal: This indicates that the case has been cited with a positive treatment, meaning it has been followed, affirmed, or approved in later cases.
- Blue Signal: This appears when the case has been cited for procedural or informational purposes rather than for its substantive legal holding.
- No Signal: If there is no signal displayed, it means the case has not been cited by other courts since it was decided, or the citations found do not affect its validity.
Step 4: Review the Citation List
Below the status signal, you will find a comprehensive list of citing references organized by treatment type. The main categories include:
Negative Treatments:
- Overruled
- Reversed
- Vacated
- Distinguished
- Criticized
- Questioned
- Declined to follow
- Dissented from
Positive Treatments:
- Followed
- Affirmed
- Approved
- Cited
- Relied upon
Neutral Treatments:
- Mentioned
- Discussed
- Cited as authority
- Procedural history
Click on any individual citation to view the full text of the citing case and understand exactly how your target case was treated. This detailed review is essential for understanding the context and implications of each citation.
Step 5: Use Advanced Filtering Options
Westlaw's KeyCite offers several filtering options to help you refine your results:
- Time Filters: You can limit results to specific time periods, which is useful when you need to focus on recent developments.
- Jurisdiction Filters: You can filter by federal courts, specific state courts, or particular appellate levels.
- Treatment Type Filters: You can focus specifically on negative treatments, positive treatments, or neutral citations.
- Citing Source Type: You can filter to show only cases, statutes, regulations, or secondary sources.
Step 6: Check for Secondary Sources and Annotations
In addition to case citations, KeyCite also tracks references in secondary sources such as law review articles, treatises, and practice guides. These can provide valuable context and additional analysis of your target case.
Understanding Negative Treatments in Detail
When you encounter negative treatments in your KeyCite results, it is important to understand what each type means for your legal research:
Overruled means a higher court has explicitly stated that the case was decided incorrectly and is no longer good law. You should not cite this case for the proposition it originally stood for Not complicated — just consistent..
Reversed typically means an appellate court has overturned the lower court's decision in the case you are researching, often on appeal. The case may still have precedential value depending on the nature of the reversal.
Distinguished occurs when a court finds that your target case is not applicable to the facts or legal issues in the current case. This can happen for various reasons, such as different factual circumstances or the application of different legal principles.
Criticized means a court has expressed disapproval of the reasoning or holding in your target case, though it may not have explicitly overruled it.
Questioned indicates that a court has raised doubts about the validity or applicability of the case but has not gone so far as to criticize or overrule it Less friction, more output..
Best Practices for Effective Shepardizing
To make the most of your shepardizing research on Westlaw, consider these best practices:
Shepardize Early and Often: Make shepardizing a habit at the beginning of your research, not just at the end. This will help you avoid building your legal analysis on shaky foundations.
Re-Shepardize Before Filing: The legal landscape can change quickly. Always re-shepardize your key authorities immediately before filing any brief or motion to ensure nothing has changed.
Look Beyond the Signal: While the color-coded signals provide a quick overview, always review the actual citations to understand the full context. A green signal doesn't mean every citation is positive, and a yellow signal doesn't mean the case is useless.
Check Both Positive and Negative Citing References: Reviewing positive treatments can help you find additional supporting authorities, while negative treatments help you understand potential weaknesses in your case.
Use the "Cited By" Feature: Westlaw's "Cited By" feature shows you cases that have cited your target case, which can be an excellent way to find additional relevant authorities The details matter here..
Common Mistakes to Avoid
Many researchers, especially those new to legal research, make avoidable mistakes when shepardizing:
- Assuming No Signal Means Good Law: A case with no signal may simply not have been cited recently, not that it has been positively reviewed.
- Ignoring Procedural Posture: A case may be good law on one issue but not another. Always check the specific holdings and issues.
- Overlooking Indirect Negative Treatment: A case may be implicitly overruled or limited even without explicit negative treatment.
- Failing to Check Subsequent History: Make sure to check if the case itself has been through appeals that might affect its status.
Conclusion
Learning how to shepardize on Westlaw is an essential skill for anyone engaged in legal research. And by following the steps outlined in this guide and understanding how to interpret KeyCite results, you can see to it that your legal analysis rests on solid, current authority. Remember that shepardizing is not a one-time activity but an ongoing process—the legal landscape is constantly evolving, and staying current with the status of your authorities is crucial for maintaining the integrity and effectiveness of your legal work Small thing, real impact..
Mastering this skill will not only improve the quality of your research but will also demonstrate professionalism and diligence that clients and courts expect from legal practitioners. Take the time to practice these techniques regularly, and you will find that shepardizing becomes a natural and invaluable part of your legal research routine Simple as that..
