Mark Giangrande is an attorney and reference librarian at DePaul University College of Law in Chicago and he's also the editor of the Tech Law Prof Blog, which I read. So when I received an email from a reader a while ago asking if Groklaw would please explain what the citations mean that he kept seeing in legal documents filed in the SCO litigation, I thought of Mark and asked him if he'd be willing to take the time to explain the subject. For example, if we see Hudkins v. Egan, 364 Ill.App.3d 587, 847 N.E.2d 145 (2006), what does the Ill.App.3d 587 or the N.E.2d mean? He has graciously agreed to explain.
As you will see, to explain it properly, he first explains the US court system, which is something many of you have asked for, and then how to research a case and what it means to “Shepardize” it, which is a subject I promised long ago I'd explain someday.
This is what the lawyers normally will have done before including a case in any brief. We've seen some shortcuts that didn't work out well in SCO v. IBM, but this is normally a fundamental step in any legal research, to find out if a case is good law by seeing what happened to it on appeal and what other judges in other courts looking at the issue may have written about it.
So, this is for you,
A Brief Description of Citators for Those Without a Legal Background
By Mark Giangrande
Before any statements of what is a citator and why lawyers use them, there has to be some explanation of the concepts of precedent, court organization, and citation format. All three of these play into the assumptions of how citators work and how they are valuable. Please keep in mind that this is written for non-lawyers or those without much of a legal background. Thus, the ideas are explained in their least complex forms.
There are two kinds of law in the United States, statutory law and common law. Statutory law, of course, is passed by a legislative body, be it that of a state legislature or congress. Most federal law is statutory in nature. States and their courts have another body of law available, and that is called the common law. Precedent is valuable to both types of law but more important to the common law.
Common law describes what rules exist and how they are applied to current disputes. Rules are developed over time as cases are decided, and those rules, which tend to be consistent, are applied as similar cases come before successive courts. The essential concept of precedent is that, unless there is any reason to vary, rules applied in earlier cases will be applied in a current case. This applies to statutory law as well, as courts try to apply consistent interpretations to the language of a statute when the statute is applied in a legal conflict. Lawyers on both sides of the dispute then will seek out those rules and case and argue to the court why those previous decisions (and the rules they embody) should or should not apply in deciding the current case.
Here’s an example. Someone injures another person in a traffic accident and the injured party sues the person allegedly responsible for their personal injuries and the damages to their property (the car). Forget for the moment that insurance companies are involved in sorting out the liabilities. The basis for the dispute between the two individuals is a tort, which goes back to English law long before the colonies, let alone courts in the United States, ever existed. While autos didn’t exist in 16th century England, carts with horses colliding, or other types of injuries caused by one individual certainly did. Courts decided those cases, and applied those rules to similar cases involving other modes of transport that involved accidents. The rules are modified over time to cover the aspects of the facts that are unique or different from similar past cases.
It is unlikely that the attorneys in the car collision scenario will cite to the court cases involving cart collisions. There is enough case law concerning auto collisions in the recent past that offer guidance as to what are the current rules for dividing up the blame and how much compensation should be awarded (if any) to the injured party. This leads into a second element of precedent, which law should apply and whether it is controlling. This requires a simple understanding of how courts are organized.
Court Structure and Jurisdiction
There are federal courts and there are state courts. Both sets of courts are divided into trial courts and various levels of appellate courts. Federal courts have specific jurisdictional requirements that limit cases brought there to cases involving federal statutes, constitutional issues, or disputes involving citizens of multiple states. State courts generally handle issues arising under state laws and disputes between citizens of the same state. This is a simplistic statement of “jurisdiction” and there are variations and nuances that affect whether a suit is appropriately brought in a particular court. Those variations are not part of this narrative, however.
Trial courts are the initial courts where the dispute will be resolved. The automobile case will typically be brought in state court located in the area where the accident occurred. If the accident took place in Chicago, for example, the suit would be brought in the Circuit Court of Cook County. There would be no reason to bring suit in a court in Pulaski County (some three hundred miles south of Chicago) unless there was some compelling reason why that venue would be more appropriate.
Assuming that the trial is heard and the judge or jury renders a verdict, that event would resolve the case. If one of the parties disagrees with the outcome, they can appeal the decision of the trial court to the appellate court designated to hear the appeal. In this case it would be the Illinois Appellate Court. The appellant (also known as the petitioner), that is, the person bringing the appeal, presents to the appellate court a list of mistakes that the judge made at trial that could conceivably have affected the outcome. These are essentially the issues that the court considers on appeal. The other person is usually referred to as the appellee or respondent. That person responds with arguments as to why the verdict should be upheld and why the reasons presented by the other side are not good enough to overturn the trial court’s verdict.
The appellate court typically does not retry the case or re-evaluate the evidence but considers whether the mistakes presented were severe enough to send the case back for a new hearing. The appellate court can uphold the trial court or reverse it (or uphold parts of the trial result and reverse parts). The appeals court usually issues a written opinion justifying its decision. This written opinion will normally identify the rules of law that govern the issue before it and note citations to previous cases that support the reasons for the court’s decision.
The decision by the Illinois Appellate Court can be appealed to the Illinois Supreme Court. There are some differences here for this second appeal. The first appeal by a party is typically exercised as a right by that party. Successive appeals are requested through a separate process where a party petitions the court to hear the case. The higher appeals court (usually the state Supreme Court) can either accept the appeal or deny it. The United States Supreme Court works in the same way. The case is effectively over once all appeals are heard or denied.
This example was set in Illinois. However, all states and the federal courts have a similar system of a trial court, an intermediate appellate court, and a supreme court. The federal courts divide the states into districts where trials are held, and group states into 13 circuits where appeals are heard. If a case was tried in a federal district court in Illinois, the case would be appealed to the 7th Circuit Court of Appeals. If the federal court trial took place in Atlanta, the appeal would be to the 11th Circuit Court of Appeals, and so on. For a look at how the federal courts are organized as jurisdictions, see generally the Administrative Office of the U.S. Courts web site. And here's a PDF map [PDF] showing the boundaries of the various districts courts and circuit courts of appeal.
Precedent Revisited and Citations
What does any of this have to do with precedent and citation? Quite a bit, actually. Every time an appellate court issues an opinion it gets placed in a set of books known as reporters. Reporters may have several publishers and some are official and others are unofficial. These books are organized by name, series, volume, and page. Here is a short example of how this works. A person died as the result of her negligent driving. The administrator of her estate wanted to recover damages for wrongful death. A trial was held and the verdict appealed. The Illinois Appellate Court held that as the negligent driver who caused the accident, the person couldn’t be a victim of the accident, and thus could not recover. The decision was published on May 19th, 2006 in volume 364 of the Illinois Appellate Reports, Third Series, on page 587. It was also published in volume 847 of the Northeastern Reporter, Second Series, on page 145. The name of the case is Hudkins v. Egan.
Identifying the citation as indicated above is a lot to say on paper as well as in court. Lawyers, judges, and others use short hand citation format and would cite the case as Hudkins v. Egan, 364 Ill.App.3d 587, 847 N.E.2d 145 (2006). There are actually two citations here, one to the Illinois Appellate Reports and one to the Northeastern Reporter. The Illinois Appellate Reports volume is the official reporter of the case, and the Northeastern Reporter is an unofficial source of the same case. They are called parallel citations as the text of the opinion can be found in these two places. This is the form a lawyer would use when he or she quotes a case as authority. This leads back to precedent.
Precedent is jurisdictional. That is to say, using Illinois as the example, that Illinois case law governs the legal rules applied in Illinois and Illinois appellate cases hold sway in the trial courts starting with Illinois Supreme Court, and secondarily the Appellate Court. Cases from other states may be persuasive, meaning the reasoning contained in similar but out of state cases may be useful enough to apply in Illinois. However, the Illinois court is not obligated to adopt the reasoning from these out of state cases. On the other hand, a decision of the Illinois Supreme Court must be applied to similar cases at the lower appellate and trial courts of Illinois. Only the United States Supreme Court decisions control both state and federal lower courts, including all of the state supreme courts. This same model of precedent is used in every state and federal jurisdiction. This is generally the context in which lawyers use citators.
What is a Citator?
A citator allows a researcher to do two things: (1) check the history of a case, and (2) check how subsequent courts have treated the principles of law derived from the source (or cited) case over time. As to the first capability, history includes any previous or subsequent activity in a case, that is, what citations appear to opinions issued in the case as it bounced up and down through the court system.
As to the second capability, a citator will provide lists of cases that have cited the source case and, through various signals, provide an analysis as to the viability of the cited decision through the present. The analysis includes references as to whether subsequent courts have followed the legal principles applied in that decision, declined to follow them, used them in conjunction with other applicable legal principles, or overruled the case in question. Understanding the treatment of a case by subsequent courts is essential to determining how viable that case may be as authority. It is one thing to cite a case that appears to squarely support an advocated proposition. However, if later courts have distinguished that case to the point where they effectively ignore it, any reliance on it in an argument will not be strong. A good citator will give the tools to help a researcher make a detailed citation analysis.
For the longest time there was only one general case citator publisher that covered citations to all reported case law in the National Reporter System (NRS) and official state reports. The NRS covers virtually all state and federal jurisdictions in a series of geographic reporters. The Illinois appellate court opinions, for example, appear in the Northeastern Reporter, along with decisions by courts in Indiana, Ohio, New York, and Massachusetts. Cases from Texas would be in the Southwestern Reporter and cases from California would be in the Pacific Reporter and so on. That citator publisher was Shepards of Colorado Springs and the general name they would use on each of their books is Shepard’s Citations. As Shepards had no serious competition for the citation analysis market, the term “Shepardize” was coined for the process of scanning citation lists for case history and treatment.
Aside from jurisdictional citators such as Shepard’s Northeastern Reporter Citations and so on, there are many specialized citators in existence, covering areas such as tax, labor, trade, and intellectual property citations, among others. As the use of citators expanded, they started to cover other legal materials including statutes, administrative regulations, municipal ordinances, and law review citations.
Shepards in Print
Shepards publishes volumes for every state (e.g., Shepards Illinois Citations) and regional reporter (e.g., Shepards Northeastern Reporter Citations) covering all reported decisions within that jurisdiction. The books are easily identifiable by their distinctive deep red cover binding with gold lettering. A jurisdictional set for a state such as Illinois will contain multiple hard-bound volumes for case and statute citations. These in turn are supplemented by annual, semi-annual and monthly pamphlets. Every law library should have, at the very least, copies of Shepard’s Citations in print that cover its relevant geographic location and jurisdictions.
One of the reasons why Shepards in print is confusing to use (even for lawyers and law students) is the fact that a citation list for an older case may start in one volume and continue in supplemental volumes. Newer cases may only appear in supplemental volumes and pamphlets, as they appear after the main volume has been published. To help identify which of the volumes are necessary for a citation search, Shepards places a list of contents on the volume spine, including coverage by date, reporter, and volume range. The most recent paper pamphlet will have a description of the complete volumes in the set printed on its front cover in a box labeled “What Your Library Should Contain.”
Once you have located a citation, the resulting list will give parallel and case history citations first. These are followed by the treatment citations – those courts that have subsequently cited the case. One point about interpreting these treatment citations is that they are to the page in the reporter where your cited case appears and not to the first page of the citing case.
There will be several alphanumeric symbols associated with treatment citations, if appropriate. You will find symbols that indicate whether the citing court followed, distinguished, explained, declined to follow, and other treatments. There is a series of tables in the inside front cover and opening pages that shows example citations. Short commentary in these pages explains the meaning and effect of these symbols in more detail.
A different symbol set will tell you which headnote of the cited case (and by extension, the point of law it contains) the citing court considered. Headnotes are editorial summaries of each case prepared by West editors for inclusion with each case in the NRS. They contain simple statements of the law which the editors extract from the text of the opinion and place them in sequential order before the court’s own text appears. Headnotes are not part of the court’s opinion. A case may be broken down into several of these headnotes depending on the length of the opinion and the complexity of the issue before the court. Identifying citations against particular headnotes helps when navigating large lists of citing cases. It becomes fairly easy, for example, to identify all citations to a specific headnote and thus pull those citations from the list for priority checking.
As different reports of the same case may have different numbers of headnotes, Shepards creates headnote references specific to the original citation. For example, a citation list for an opinion as it appears in Illinois Reports (the official reporter for the Illinois Supreme Court) is geared towards the headnotes as created by the editors for that reporter. A citation list for the same case in the Northeastern Reporter would be geared towards the number of headnotes in the West NRS version of the report. The two versions will essentially have different editors and editorial standards for the summaries of the opinions. The text of the actual opinion will be the same in both of these volumes.
Shepards was purchased by Lexis in the early 1990’s, and since 1997 has appeared exclusively online through the Lexis/Nexis service. This was partially in reaction to West Group having created KeyCite, the online competitor to Shepards. Lexis/Nexis is a commercial service that requires a password and either a subscription or a pay-as-you-go use with a credit card. The main location for Lexis on the web is http://www.lexis.com. More information about the company that provides the Lexis service is here. Note that many universities subscribe to a subset of the Lexis service called Lexis-Nexis Academic: Legal Research. Online shepardizing is only available for the U.S. Supreme Court in this form of the database. Law Schools, their students, faculty, and staff, however, have access to a wider collection of legal databases including the full Shepard’s online services.
The benefits of Shepard’s have carried over to the online version, and have been enhanced and expanded without the limitations of the print product. Instead of dealing with multiple volumes, all citations to a given item appear on one report. Unlike the paper version, a citation list is created at the moment of request. The report list includes citations not only to published opinions, but also to unpublished or non-print opinions that appear in the Lexis database. Citations to one report of a case will retrieve all citations to all reported versions of the same case including those noted through parallel citations. Software filters that can limit headnote citations to a particular version of the case solve the headnote issue. The various filters can select cases based on other parameters as well. The citation treatment is spelled out in clear words rather than symbols. Any cases cited are hyperlinked to the online version of the citing case and pinpoint directly to the cited opinion in the online text.
Note that as of September 1, 2006 that Lexis has decided to remove the headnote citation feature from the print product and has apparently removed it from the online product as well. As this editorial change is rather new, this feature may still exist in some printed Shepard’s materials. This feature continues to exist in KeyCite, Shepards main online competitor.
West Group took a slightly different approach to KeyCite. Instead of using treatment symbols or language to that effect, KeyCite evaluates a citation by how extensive a citing court has examined that citation. They assign a series of stars, ranging from four, meaning the citing court has spent a significant amount of verbiage examining the case and its impact, with lesser and lesser reference and examination represented by three, two, and one star, meaning the citing court has mentioned the case without necessarily going into any detail (such as a “See or string cite reference). A typical KeyCite report will group the four star cases at the top followed by the three star cases, and so on. Cases in these groupings will hyperlink to the full text of the citing cases on the Westlaw service.
There are other identifiers, such as the quotation mark symbol, which means a case was quoted. There are headnote lists that appear with each citation and these also can be filtered to a particular citation if parallel citations exist. Additional filters are available, such as jurisdiction, dates, and many others. KeyCite is only available on Westlaw. There is no print counterpart. Westlaw is similar to Lexis in that it requires a subscription and password, or a similar credit card use. Law schools subscribe to Westlaw on behalf of their students faculty and staff. There is no comparable university-wide subscription plan to the Lexis-Nexis Academic: Legal Research service. Westlaw is available at http://www.westlaw.com. More information about West Groups is at http://www.westgroup.com. West Group, by the way, also powers FindLaw.com.
Some Differences (and Similarities) between Shepards and KeyCite
Citation lists will vary between the two services, to some degree based on the variations in unreported cases, or how fast recent cases have been added to these systems. Each will generate a report of citations to secondary sources that are available through their respective systems. A secondary source is legal material that consists of commentary, such as a treatise on an area of law, a law review article, a brief in a case, or similar material. As Lexis and Westlaw have either licensed different publications or include their own print titles exclusively in their databases, secondary source citations will have a greater variation between the two research services compared to a list of cases alone.
West has expanded their full KeyCite lists to include briefs and records that appear on Westlaw, with some of these items exclusive to Westlaw. Other than coverage and approach to analysis, the general concept of the citator is the same for Shepards and KeyCite: they both give history and treatment of a case. Given the immense amount of documents respectively on Lexis and Westlaw, and given the amount of duplication of primary legal materials, both Shepards and KeyCite offer fairly substantial and reliable results.
Both use symbols to indicate summary treatment of a case. These appear at the top of the document as it is presented on screen. Shepards will use a red “stop sign” symbol to indicate severe negative treatment. A yellow triangle means caution, some negative treatment. West does similar things with multi-colored pennants. Placing the cursor over one of these symbols will display a small temporary window with a brief explanation of the symbol.
For tutorials on how to use Shepards, visit the Lexis training page and select from the appropriate links listed near the lower part of the page.
Here's a tutorial on KeyCite [PDF].
Summary of Principles
Precedent is the concept that applications or explanations of law from higher courts can control how lower courts (lower appellate and trial courts) decide cases.
Precedent is jurisdictional, even if courts of other states decide similar cases in a similar manner. An in-state case is controlling while an out-of-state case may be persuasive, depending on how similar the issue may be in both cases. The same is true for in-circuit and out-of-circuit cases in the federal courts.
Lawyers identify precedent to give a court justification to decide a legal dispute in a particular way.
Published opinions will have a standard citation to the book in which they appear. Cases published only online will have a Lexis or Westlaw citation associated with them.
Citators collect references to cases and show how subsequent courts have treated the opinions over time, and thus their viability to use as precedent.
The two major online citators are Shepard’s on the Lexis-Nexis service, and KeyCite on the Westlaw service. Shepard’s also appears as a print product. These are both proprietary services that require a subscription or other forms of payment for use. Sometimes law libraries may subscribe to Shepard’s or KeyCite as a separate service and under license can offer them to the public. Check with your local library to see if either of these are available for public use and under what circumstances.
Biography of Mark Giangrande
Mark Giangrande is a lawyer and member of the Illinois Bar. He currently works as a reference librarian at the Vincent G. Rinn Library at the DePaul University College of Law in Chicago. Prior to coming to DePaul, he managed technical operations at several other law schools. He has taught Advanced Legal Research at DePaul and has participated as an instructor for legal research in various CLE events. He is the editor of the Tech Law Prof Blog and a co-editor of the Law Librarian Blog. You can contact him at mgiangra at depaul.edu, although he cannot offer legal advice in particular cases. He also maintains, if that’s the word for it, a web site devoted to the musical dissemblings of himself and his friends. He does not encourage anyone to go there.