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LRAW Research Spring 2023

Updating Federal Cases Using a Citator: Negative History or Treatment

Updating a case means to check to make sure it is still good law for the legal issue you are researching. A case is good law for an issue if its holding on that issue has not been reversed or overruled or superseded by a statute.

To update a case, you use a citator. Keycite® is the citator for Westlaw. Shepard's® is the citator for Lexis. 

A citator warns you when a case has received negative treatment. As Westlaw puts it, there are two kinds of negative treatment:

  1. Negative direct history consists of events or decisions in the same litigation or proceedings that negatively impact a case. For example, when a case is reversed on appeal, that is negative direct history that causes a case to become bad law. On the other hand, if the appeal has been filed and is still pending, that is direct history that does not make the case bad law.
  2. Negative citing references are events or decisions in other litigation or proceedings that negatively impact a case. For example, when a U.S. Supreme Court case is overruled by a subsequent U.S. Supreme Court, that is a negative citing reference that causes the first case to become bad law. On the other hand, when one federal circuit declines to follow the rule set out by another federal circuit, that is a negative citing reference that does not make the other circuit's case bad law.

Lexis describes the same concept slightly differently, swapping the terms negative treatment and negative citing references. On Lexis, there are two kinds of negative citing references: negative history (part of the same litigation or proceedings) and negative treatment (part of other litigation or proceedings).

For any case you plan to cite for a particular proposition, investigate until you understand why the citator assigned a particular flag or signal to that case. If a case is bad law for the proposition, you must not cite it. If a citator has brought other concerns to your attention, think through whether another case would be stronger. But if the case is good law, you can cite the case. No case is perfect; just make sure you understand what the potential concerns are.


KeyCite Flags in Westlaw

Westlaw uses two flags to indicate negative treatment:

  1. A red flag warns that a case is no longer good law for at least one of the points of law it contains, e.g., reversed or overruled.
    A red flag warns that the case is no longer good law for at least one of the points of law it contains.
  2. A yellow flag warns that the case has some negative treatment, but has not been reversed or overruled.
    A yellow flag warns that the case has some negative treatment.

Westlaw Edge uses a blue striped flag to alert you that a case has been appealed to the U.S. Court of Appeals or the U.S. Supreme Court (not from federal agencies).

A blue-striped flag indicates that the case has been appealed to the U.S. Courts of Appeal or the U.S. Supreme Court (excluding appeals originating from agencies).


Shepard's Signals in Lexis 

Lexis uses three key signal indicators to indicate negative history or treatment: 

  1. A red stop signal warns that negative treatment is indicated—that citing references contain strong negative history or treatment of a case, e.g., the case has been overruled or reversed.
    The red Shepard’s Signal Indicator indicates that citing references in the Shepard’s Citation Service contain strong negative history of the case (for example, overruled or reversed).
  2. An orange "Q" signal indicates that citing references contain treatment that questions the continued validity or precedential value of a case.
    The orange Shepard’s Signal Indicator indicates that citing references in the Shepard’s Citation Service contain treatment that questions the continuing validity or precedential value of your case because of intervening circumstances, including judicial or legislative overruling.
  3. A yellow triangle signal cautions that citing references containing treatment may have a significant impact on a case, e.g., limited or criticized.
    The yellow Shepard’s Signal Indicator indicates that citing references in the Shepard’s Citation Service contain history or treatment that may have a significant negative impact on your case (for example, limited or criticized by).

We use citators for two purposes:

  1. To update or make sure a case you plan to rely on is still good law; and
  2. To identify other resources, particularly cases and secondary sources that have cited that case.

Updating Federal Cases Using KeyCite on Westlaw

Westlaw uses a red KeyCite flag to alert you that a case is no longer good law for at least one of the points of law it contains and a yellow KeyCite flag to indicate negative treatment that is less severe.


KeyCite Red Flag Example

For example, the whistleblower decision in Lawson has been assigned a red KeyCite flag because it is no longer valid for at least one point of law. In fact, the 2012 First Circuit decision was reversed and remanded by the U.S. Supreme Court in 2014. (Click the image below to enlarge.)

screenshot of Lawson v. FMR LLC, 670 F.3d 61 (2012), highlighting language next to the second red flag: Reversed and Remanded by Lawson v. FMR LLC, U.S., March 4, 2014

 

Click on the red flag to go to the Negative Treatment tab. The "Most Negative" case is the reason for the flag on the 2012 First Circuit Lawson decision. (Click the image below to enlarge.)

screenshot of Negative Treatment tab. Click the red flag to see the Negative Treatment tab, containing the reasons for the red flag. First is the 2012 case you KeyCited. Second is the 2013 decision of the U.S. Supreme Court to grant certiorari. Third is the 2014 decision of the U.S. Supreme Court that reversed and remanded the case you KeyCited. Westlaw marked it Most Negative because it presents the most serious reason that the case you KeyCited may not be good law.

 

Select the History tab to view the complete history of the Lawson case in list and graphical formats. This can help you understand the procedural context of the case, chronologically and in terms of which levels of courts have been involved. (Click the image below to enlarge.)

screenshot of History tab. The case you KeyCited is highlighted.


KeyCite Yellow Flag Example

U.S. v. Harrison shows a yellow KeyCite flag because it was distinguished by at least one court. It is still good law because it has not been reversed or overruled or superseded by statute. However, before you rely on a case as support for a point of law, you should be sure you fully understand how each case that caused a yellow flag does or does not affect the case's value as precedent.

Next to the yellow flag, Westlaw mentions the case that provides the most pause before relying on U.S. v. Harrison. However, notice that the case is from a district court in Michigan. When a district court distinguishes a Court of Appeals case (Harrison was decided by the Third Circuit Court of Appeals), that does not affect the precedential value of the Court of Appeals case. (Click the image below to enlarge.)

screenshot of U.S. v. Harrison, 689 F.3d 301 (3rd. CIr. 2012). Highlighted after second yellow flag: Distinguished by United States v. Spence, E.D.Mich., March 6, 2017

 

Click the yellow flag to go to the Negative Treatment tab and see links to all cases that contribute to the reasons for the flag. Notice that the Michigan district court case is labeled Most Negative. However, there are also two other cases. One of them is a state case from the Supreme Court of New Jersey. If you were arguing in a New Jersey state trial court or appeals court, that case would affect the precedential value of U.S. v. Harrison. However, if you are arguing anywhere else, that case would not affect the precedential value of U.S. v. Harrison.

Something else to consider when you find cases that distinguish a case you KeyCited, is whether the facts of your client's situation are more similar to the facts of the case you KeyCited or to a distinguishing case. This may cause you to skim some other cases to ensure that you've identified the case that is most on point.

You may be citing one particular proposition from U.S. v. Harrison, the statement about losing a right to privacy in abandoned property, which Westlaw labeled with headnote 12. If you look at the column labeled Headnote(s), you can see which cases (if any) distinguished that point.

screenshot of Negative Treatment tab on U.S. v. Harrison, 689 F.3d 301 (3rd Cir. 2012).


KeyCite Overruling Risk Example

Westlaw also uses an orange exclamation point to indicate a case’s risk of being overruled due to its reliance on precedent that has become compromised. The overruling risk indicator is powered by AI, not by lawyer editors, so you will need to carefully make your own assessment of the risk that the point of law you want to cite will be overruled.

For example, Childress v. Heckler, 616 F.Supp. 563 (E.D.La. 1985) has been marked with an orange exclamation point indicating overruling risk.

Westlaw tells you which case indicates that Childress relies on bad precedent: Cadkin v. Loose. If you open Cadkin v. Loose in a new tab and quickly skim, it appears that Cadkin v. Loose overruled Corcoran, a case relied upon by Childress.

screenshot of Childress v. Heckler, 616 F.Supp. 563 (E.D.La. 1985)

 

Going back to the Childress case, click the small triangle to the right of "Overruling Risk" to open a Document Navigation menu. There, you can click on Overruling Risk to go directly to the portion of Childress that Westlaw identifies as relying on authority that is now bad law. Childress mentions Corcoran (the citation to Corcoran is marked with a red flag because Corcoran has been overruled). However, in reading Childress more carefully, it does not appear that Childress relied on Corcoran. Unlike the plaintiffs in Corcoran and Cadkin v. Loose (which overruled Corcoran), the plaintiff in Childress did not seek a voluntary dismissal. Therefore, as long as your client's situation also does not involve seeking a voluntary dismissal, the overruling risk icon on Childress would not create concern.

screenshot of Childress

Updating Federal Cases Using Shepard's on Lexis

Lexis uses a red stop signal to alert you to strong negative history or treatment indicating that the case is no longer good law on at least one point, and a yellow triangle signal to indicate possible negative treatment that is less severe.


Shepard's Red Stop Signal Example

For example, the whistleblower decision in Lawson has been assigned a red stop signal because it is no longer valid for at least one point of law.

On the right, under Shepard's®, next to the red stop signal Warning, click Why?

screenshot

 

You will see the linked citation to the U.S. Supreme Court case that reversed Lawson.

screenshot after clicking View the top citing reference

Click Subsequent appellate history at the right to view the complete history of the Lawson case.

Another way to get there would be to click Shepardize document at the right, then click the History at the top. 

screenshot

Shepard's Appellate History can help you understand the procedural context of the case, chronologically and in terms of which levels of courts have been involved.

screenshot

 


Shepard's Yellow Triangle Signal Example

United States v. Harrison shows a yellow triangle Shepard's Signal™ because there is possible negative treatment. United States v. Harrison is still good law because it has not been reversed or overruled or superseded by statute. However, before you rely on a yellow-flagged case, you should understand all cases that contributed to its yellow flag and how they could affect the case's precedential value.

To see all the cases that cite Harrison negatively, click Caution under Citing Decisions. (Click the image below to enlarge.)

screenshot

 

Because you clicked click Caution under Citing Decisions, a "Caution" filter has been applied, so that only the four decisions that distinguish Harrison are shown. This gives you the opportunity to see whether any of the distinguishing cases are from higher courts in the jurisdiction where you would be arguing. If these cases are not mandatory, then you would not be concerned that any of them would affect the precedential value of Harrison for your purposes.

screenshot

Finding Other Resources Using Citing References Powered by KeyCite on Westlaw

Scenario: You have found one relevant case, but you want to find more case law examples before you decide which one(s) to use in your memo. It would also be nice to find an encyclopedia section, a law review article, or a treatise chapter that would summarize the case, help put the case in context, and lead you to the most significant cases for that point of law.

 

Once you find a relevant case in Westlaw, you can use the Citing References tab (powered by KeyCite) to find other cases and secondary sources that cite that case.

screenshot of Citing References tab of U.S. v. Harrison, 689 F.3d 301 (3d Cir. 2012)

Click Cases on the left, to see all the cases that cite your case.

Content types: Cases (selected) / Secondary Sources / Appellate Court Documents / Trial Court Documents / All Results

You can filter by jurisdiction to look for mandatory case law. The depth of treatment filter for case law represents the extent to which the case that cites your case discusses it (more green bars means more discussion).You can also filter by headnote topic to limit your results to those cases that address a specific legal issue. Select the Apply button to narrow your results.

screenshot of Jurisdiction - Fourth Circuit Ct. App.; Depth of Treatment - 4 bars; Headnote Topics - Controlled Substances k138 Objects thrown or abandoned

Click Secondary Sources on the left to see all the secondary sources that cite your case. You can filter by the type of secondary source that cites the case. An ALR annotation can serve as a very helpful case finding tool.

screenshot of Content types: Cases / Secondary Sources (highlighted) - ALR - Law Reviews - Other / Appellate Court Documents / Trial Court Documents / All Results

Finding Other Resources Using Citing References Powered by Shepard's on Lexis

Scenario: You have found one relevant case, but you want to find more case law examples before you decide which one(s) to use in your memo. It would also be nice to find an encyclopedia section, a law review article, or a treatise chapter that would summarize the case, help put the case in context, and lead you to the most significant cases for that point of law.

 

Once you find a relevant case in Lexis, you can use Shepard’s to find other cases and secondary sources that cite that case.

If you do not see Shepard's on the right, click Info to expand the Shepard's panel.

screenshot

Click Citing Decisions or click Shepardize document. Either option will take you to Citing Decisions by default.

The Citing Decisions are all cases that have cited your case.

The colors on the bar graph show you which courts have analyzed your case from positive or negative perspectives. "Cited by" means that your case was merely cited, without significant analysis. Clicking a vertical bar lets you filter your results to include only cases from one jurisdiction. From there, you can filter to only the positive cases or only the negative cases within that jurisdiction.

To find secondary sources that have cited your case, choose the Other Citing Sources tab at the top.

screenshot