Cite Checking

Terms:


Cite check: 
A process through which one may determine whether a judicial decision is law on which one may base a legal argument

Good law: 
Law that is still operative and on which one may base a legal argument

Shepard’s: 
A service through which you can check citations to determine whether the law is still operative.

KeyCite: 
A service, offered by West, through which you can check citations to determine whether the law is still operative.


Because the law is constantly evolving, checking your cited judicial decisions is absolutely essential. The importance of this practice cannot be overstated. Also referred to as “cite-checking”, this is a process through which you can determine whether the cases that you wish to cite are still good law. "Good law" refers to law that is still operative, i.e., has not been rendered overridden or overruled by other judicial decisions or legislation.

There are a variety of ways to determine whether a particular citation is still good law. The most popular way is through a series of books called Shepard’s. Organized by publication, Shepard’s books contain almost every citation, and are usually kept in the same general area in a law library as the publication in which your decision is reported. Here’s the way it works: 

In the appropriate Shepard’s volume, find the page on which the volume in which your decision is reported. Then scan the columns to find the page number on which your decision begins. Find the name of your case. Under the case name will be a list of other citations, which indicate that all of these other citations have cited or referenced your decision. 

Some of the citing references will have a letter next to them. In the front of the Shepard’s book is a table that explains what the letters mean. For example, “r” means “reversed”, “o” means “overruled”, “d” means “distinguished”. These are called explanatory phrases, and they indicate the subsequent history or subsequent treatment of a decision. They can explain whether the decision was reversed on appeal and how other courts have understood the particular decision.

There are many explanatory phrases that are used to explain citations within legal documents as well. You will see these quite often when you read decisions. Following is a list of those used most often:

Affirmed: "Affirmed" means that the judicial decision has been appealed to a higher court, and the higher court has agreed with the lower court’s holding. The higher court has affirmed the lower court’s decision.

Affirmed on other grounds: "Affirmed on other grounds" means that the judicial decision has been affirmed by a higher court, but not for the same reasons as the first decision. 

Amended by: "Amended by" means that a higher court has, through its own decision, amended the lower court’s decision for a particular reason. 

Appeal denied: "Appeal denied" means that a higher court has denied a party’s request to appeal the lower court’s decision. 

Appeal dismissed: "Appeal dismissed" means that a higher court has dismissed a party’s appeal of the lower court’s decision.

Cert. denied: "Cert. (certiorari) denied" means that a higher court has denied a party’s request that the higher court review the lower court’s decision. As we discussed in a previous chapter, certiorari is a Latin term. When a party who disagrees with a specific decision of a lower court wants appellate review, the party will often ask the court to grant certiorari – meaning that the court agrees to review the case. Almost all of the highest appellate courts require a request for certiorari before they will review a lower court’s decision. 

Cert. dismissed: "Cert. dismissed" means that a higher court has granted certiorari to review a lower court’s decision, but later decided that the granting of certiorari was imprudent. Therefore, the court dismissed (reversed) the grant of certiorari.

Cert. granted: Cert. granted means that a higher court has granted a party’s request that the higher court review a lower court’s decision.

Modified: "Modified" means that a higher court has, through its own decision, modified the lower court’s decision.

Overruled by: "Overruled by" means that a higher court or the same court that rendered the original decision has subsequently disagreed with the decision and thus rendered the old law obsolete. The new decision overrules the old decision, and the new decision becomes operative law. For example, if one court held: “One is not negligent if one fails to stop for a pedestrian in a crosswalk,” such a decision would be overruled if that same court or a higher court later held: “One is negligent if one fails to stop for a pedestrian in a crosswalk.” The first decision is overruled by the second.

Reversed: "Reversed" means that a higher court has disagreed with the ultimate outcome of a decision and decides that the opposite should have been held instead. For example:

A lower court, when deciding a motion for summary judgment, found that there was no genuine issue of material fact, and thus granted summary judgment to one party. If, on appeal, a higher court decided that the lower court abused its discretion in making such a determination, the higher court would reverse the lower court’s decision and reverse the summary judgment.

Reversed on other grounds: "Reversed on other grounds" means that the higher court reversed the lower court’s decision, but for reasons other than the proposition for which you have cited the decision. 

Obviously, from the list above, some judicial decisions render other judicial decisions inapplicable and, essentially, null and void. If this is the case, the decision that has been overruled or reversed or vacated, etc., is considered “bad law” and should not be cited as legal authority. For example:

While researching a case in his local law library, Attorney Andrews comes across a case that perfectly supports his position in his trial. Being a thorough attorney, Attorney Andrews cite checks the case. Under the citation for his perfect case, he notices another decision with the letter “d” next to it. In the list in the beginning of the volume, he learns that “d” means distinguished. To determine whether his case has been explained further, in ways that may help or hurt him, Attorney Andrews should review the cited case.

It is also important to check the supporting legal authority for the cases that you discover while Shepardizing. There is good reason for this. Assume a first decision is overruled by a second decision. If you Shepardize the first decision, you will see that it has been overruled by the second decision. Now assume that, in your research, you find a third case that relies on the first case. Shepardizing the third case would only bring up the first case and it would appear that the third case would be valid. If you "trace" back to the second case, however, you will find that the first case is not good law, and thus the third case would be no good as well. For example:

While Shepardizing People v. Smith, a case from the court of appeals, you find that it relies upon People v. Jones, a decision of the Supreme Court. It turns out that People v. Jones has been overruled by People v. Johnson, another Supreme Court decision. If you would have stopped Shepardizing after the first step, you would have thought that Smith is still good law because of Jones. In fact, Jones is, itself, no longer good law (because of Johnson). Thus, Smith itself is no longer good law.

Shepard’s has other features, which will be discussed in your Lexis training. It is worth mentioning here that Shepard’s also cites cases and other sources that are not necessarily binding. Shepard’s will, ideally, cite every case or source that has cited in the case you are Shepardizing. For example, if you Shepardize a New Mexico case, the case may have been cited by courts on the eastern seaboard as well as treatises and legal encyclopedias, and you will see these other citations in Shepard’s as well as those from other New Mexico courts. These other sources are not binding in your jurisdiction, although their treatment of your case may be illuminating. 

The Shepard’s service is also available online through Lexis. Westlaw does not use the Shepard’s service, but it does have a similar service called “KeyCite”, which provides similar information. KeyCite operates similarly to Shepard’s in that you can pull up all of the cases and other sources that cite the case you’re researching. All of the same rules described above apply. KeyCite and Shepard's both use flags to indicate how other cases have treated the case you’re researching. A yellow flag indicates possible negative treatment, and a red flag indicates definite negative treatment. A red flag, however, does not automatically mean that the case is no longer good law – these citing cases must be read to determine their impact, if any, on the case you wish to cite.