How to Confirm that Your Case is Good Law

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Introduction

Using Shepard's Citations

Using FindLaw

1. Introduction Once you find cases that you intend to rely on, it is important to determine whether or not the legal propositions that they stand for are still "good law." Court opinions can lose their authoritativeness in a number of ways. A higher court can overturn (i.e., reverse) a decision of a lower court, thereby undermining the precedential value of that lower court opinion. Courts also sometimes overrule prior precedents or question the applicability of those precedents to the cases before them. Additionally, in California, a Court of Appeal opinion cannot be cited if the California Supreme Court orders it "not to be published" or merely "grants review" in the case (i.e., agrees to hear the case on appeal).

The major tool that is used by legal researchers to check on the status of a case is called a case citator. Citators provide the history of cases as they made their way through the courts. They also list subsequent cases and other authorities that have cited to earlier cases. Looking at a case's citation history can help you to see if there are any cases that have overruled, criticized, or otherwise negatively treated the cases you are interested in and intend to use. It can also help you to find additional cases on the topic(s) in which you are interested.

2. Using Shepard's Citations (Shepardizing Your Cases) One of the most widely used citators is called Shepard's Citations, which is available to USC users via LexisNexis Academic (in the "Search - Legal" folder). Checking the status of your cases with Shepard's Citations is sometimes referred to as "shepardizing" your cases.

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From the Shepard's Citations page, you can enter your case citation. If you find that your citation is not recognized, click on the "Citation Formats" link, which will take you to a "Browse Citations" page. On this page, click on the "Find Citations" link and then enter the name of the reporter containing your case (or the reporter abbreviation you have). Look for your reporter from the list provided and click on the corresponding abbreviation for that reporter. You will then be given a customized citation search form in which you merely have to enter the volume number and page number from your citation (as shown below):

When you enter your citation, you will retrieve the Shepard's Summary (like the one below), which tells you if there is anything in your case's history that negatively impacts the authoritativeness of your case as well as the different types of treatment given to your case in later cases.

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For example, if you are interested in the status of the 5th Circuit Court of Appeals casePaternostro v. U.S., 311 F.2d 298 (5th Cir. 1962), you will find from the Shepard's Summary for this case that while the case has no negative case history, there were some later cases that negatively treated the Paternostro case (specifically, it was overruled, questioned, criticized, and distinguished). There were also some cases that positively treated the case (indicated by the "followed" designation). Because at least one part of the Paternostro opinion was overruled, a red stop sign symbol is placed next to thePaternostro citation. (This symbol is reserved for opinions that have been overruled, reversed, or negatively impacted in some other significant way.)

If you scrolled through the Shepard's report for the Paternostro case, you would eventually get to the "Citing Decisions," where you would find out which cases treated thePaternostro case in the various ways described above.

For example, the screen shot below indicates that the Paternostro case was overruled by the 5th Circuit in the 1994 case United States v. Rodriguez-Rios, 14 F.3d 1040 (5th Cir. 1994). The Paternostro opinion was also questioned by the 6th Circuit in the 1995 caseUnited States v. LeMaster, 54 F.3d 1224 (6th Cir. 1995) as well as criticized by the 9th Circuit in the 1972 case United States v. Ratner, 464 F.2d 101 (9th Cir. 1972).

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The screen shot below is from a Shepard's report for a different case, Addonizio v. United States, 573 F.2d 147 (3d Cir. 1978), to illustrate how Shepard's provides information on a case's history. The entered citation is highlighted in gray. The lower court opinion in this case that came before the 1978 3d Circuit opinion is listed above the highlighted citation (as "Prior History"), and the opinions that came after are listed below (as "Subsequent Appellate History"). Note that the 3d Circuit's 1979 decision in this case was reversed by the United States Supreme Court (which is why the red stop sign symbol appears near the top of this screen).

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It is important to note that even if significant negative history or treatments are reported for a particular opinion and a red stop sign symbol is included in the Shepard's report, it does not mean that the opinion can no longer be cited as precedent. It just means that at least one principle, rule, or holding in the opinion is no longer recognized as "good law." However, some portion(s) of the opinion may still have precedential value. It is therefore important to read carefully the cases that negatively affect the cases in which you are interested to see what aspect(s) of these cases they impact.

3. Using FindLaw Generally, citators are only available as part of commercial online services that require a fee or subscription to access. FindLaw's California Case Law page however is a freely accessible website that includes a citator service for California state court opinions (allowing you to find California court opinions that cite to other California court opinions). To use this service on this site, choose the "Advanced Search" option and enter your citation using the "Cite Check" template. You will then retrieve a list of cases that cite to your case. You can view the full text of any of the citing cases on your list, though you must be registered with Findlaw in order to do so.

Unlike Shepard's Citations discussed above, the FindLaw citator service does not give you an indication of how the citing California cases relate to or treat the case in which you are interested. This means that you may have to read or browse through a larger number of citing cases to determine the status of your case.

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