Yes, but how do I Shepardize?

What is a citator good for?

Citators have been a part of the American legal research landscape for about as long as any type of product. First appearing in the early 1820s, citators showed up around the same time as the first case law digests (and naturally, after the first reporters and treatises). Why lawyers wanted them was fairly straightforward — they sought to avoid the type of “Oh, sh*t” moment I wrote about last week in my post about false negatives and false positives. But in an era featuring a veritable buffet of case law authority for attorneys to find and choose from, combined with new technological tools to access and query that authority, one wonders how relevant the traditional “updating” function of case law citators really is.

Beyond the Terms

Let’s say you don’t subscribe to one of the three major services (Westlaw, Lexis, or Bloomberg Law) with an editorial citator (KeyCite, Shepard’s, or BCite) — how do you update your case law? That is, in the parlance of only two or three decades ago, when many lawyers were educated, how do you Shepardize? There is a vocabulary problem here, of course, when an action has been subsumed by a product name. Hasn’t the function of “doing citation analysis” or “finding out what cases cite my case” been locked in to Shepard’s promised backstopping model? (“Shepardize” is a trademarked term, naturally. I’ll leave dilution or “genericide” analysis to you.)

My point is that by asking “how do I Shepardize?” you are asking the wrong question. The question really should be “how do I situate the legal doctrine I’m relying upon within the context of the cases that follow it?” Once you make the leap beyond equating all citators with the way you have used Shepard’s, KeyCite, etc., in the past, it’s possible to think of other ways of verifying the authority you’ve found. Why, for instance, should Shepardizing come at the end of the research process and not closer to the beginning? (Certainly citators are more powerful than serving as the means by which to check boxes at the end of a demanding intellectual task.) This step is essential for lawyers demanding real choices from their legal information vendors in the citator space and, frankly, for conducting more thoughtful legal analysis.

Further Reading:

The excellent article by Patti Ogden, “‘Mastering the Lawless Science of Our Law’: A Story of Legal Citation Indexes,” 85 Law Libr. J. 1, 39 (1993), for a fascinating history.

Of course, you can also read my paper, Yellow Flag Fever, 108 Law Libr. J. 77 (2016) here.

A Green Flag for Gratitude

As you probably know, I am quite new to law librarianship and the legal information field. I was fortunate enough to have my paper on citators and descriptions of negative precedent published, and while my name will fill the “Creator” field, there are many many people without whom my project could not have happened. So, let me take some time to say thanks. Of course, the familiar caveat applies — any errors or omissions in the paper are entirely my responsibility. Any insights, however, are purely coincidental and likely attributable to the after-mentioned.

First to two very special people who played very different roles: Ed Walters, CEO of Fastcase, let me join his team for a summer to work his brilliant ideas about citation analysis. His thinking (and some of his data) form the backbone of my paper. Thank you for taking me under your wing, Ed! And to Sara Sampson, who taught two classes I took the same semester of graduate school and who was and is an incredible mentor to many. Sara, thanks so much for encouraging me to speak up and also for showing me how to Shepardize with the print volumes!

And now, let me also say thanks:

To other members of the Fastcase team who were amazing: Christina Steinbrecker Jack, “Other Deb” Deborah Letz, Ryan Semmler, Chris Jamros, the entire dev team, and Jennifer Owens, not to mention Phil Rosenthal, who probably has no idea that my meeting him is how I got introduced to Fastcase. You were all so welcoming and helpful, and I apologize for eating too many subs at my desk.

To my colleagues and mentors at Carolina Law who talked with me all throughout my time in graduate school and took the chance of hiring me full-time right after I graduated: Anne Klinefelter steered me away from many errors and gave very helpful feedback, Leslie Street has been an excellent supervisor (two times over!), and Julie Kimbrough, who prevented me from writing about “metadicta,” whatever the hell I thought that was. (OK, I know what it is and I might still write about it someday!) And to Stacey Byrd, who got me my first job as a circulation assistant in the law library!

To my master’s paper advisor, Ryan Shaw, whose comments and guidance strengthened my work, and to Lara Bailey, who is awesome. To James Duggan, editor of LLJ, who cite-checked and line edited my work. Now I get one of those “LLJ Author” ribbons, right? To Susan Nevelow-Mart, whose work was extremely helpful in exploring this area of study and who invited me to workshop an earlier paper at the Boulder Conference. And to Brett Currier, for being my fellow traveler through the world of graduate school, and for tolerating my linguistic prescriptivism.

To my parents, Paul and Hannah Kirschenfeld, for supporting me since birth and helping me attend the schools I wanted to (and mostly leaving me alone while I was there!) and who endured many tough times raising a stubborn, argumentative young man. I love you both very much.

To my wife, Debbie, who read many versions of the paper and did a bunch of editing, and who also married me. I knew from the moment I met you that we’d spend the rest of our lives together – I love you.

And to four very special cats: Mitch, Sherman, and William, you guys are the absolute worst-best pets and you are very cute, and to Maddox, whom I miss dearly, and who is surely best friends with all the other pets over the rainbow bridge – love you, yogurt-friend.

There are so many others who deserve recognition that I didn’t have time or the proper memory to name – my thank you to you all as well!

Yellow for Caution

What, exactly, are we paying for when we are paying for citators?

If you’ve read or skimmed or read the abstract of my paper – Yellow Flag Fever, 108 Law Libr. J. 77 (2016) – you might be left with that question or something similar.

Let me start at the beginning. I think a citator derives primary value from its integration in a “total” CALR system. (Of course, no one CALR system is total.) I don’t think it’s possible to extract a citator and judge it unconnected by the tools surrounding it, out of context. That said, my paper does try to examine and assess elements of citators without resorting to a “Coke vs. Pepsi” type of comparison.

I want to take the time to explain some of my findings and impressions here on the blog. You can leave questions in the comments below or send them to me on Twitter – I am @kirschsubjudice.

I also want to make one point very clear: I think citators are excellent tools, just not at the task of accurately identifying and describing the nature of negative precedent. I’ll be sure to address the good along with the bad in the weeks to come.

So for the first of these posts, I want to lay out a basic problem for you and talk about how it relates to my research.

False Negatives and False Positives

The case you’re researching has been overruled, but your citator doesn’t tell you that. It’s the nightmare scenario – the false negative!! Obviously, when you are assessing a citator, you want to know not if what you’re looking at is good law, but rather if it is bad law. If the citator says nothing, you’d like to think that it is definitely not bad.

What concerns me more as a buyer of a product for people, i.e. lawyers, faculty members, law students, and members of the public, is whether they will be able to use the system both *efficiently* and to yield the best results. I tend to worry much more about false positives. That is, how often is the case you’re researching characterized as receiving negative treatment when it really hasn’t? This isn’t dangerous, per se, but it’s wasteful.

As I conclude, KeyCite’s Yellow Flag is problematic because it tends to present a false positive more often than I’d like. It often means, in essence, that the researcher should read the case. Oh, gee, thanks. Of course you should read the case! But we don’t need a citator to tell us that, do we?