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Beware Shepard’s

Apr 13, 2009 Beware Shepard’s

In the days before Al Gore discovered the Internet, my law school legal research and writing instructor introduced us to the tomes — called Shepard’s Citations — through which we painstakingly checked whether court cases being cited by us had been overturned, reversed, or affirmed, or had certiorari granted or denied. We then learned how to do the same research through the dial-up Lexis service, using a telephone modem. Learning how to use the books first made it easier for me to understand the meaning of the dialup version of Shepard’s, and now the Internet version.

As dull as it is, all lawyers and law students must master Shepard’s analysis so as not to miss anything that should not be missed. Merely because a lawyer or law student looks bright on paper does not automatically mean s/he has grasped Shepard’s, as made clear when a second-year law student botched a simple Shepard’s assignment by merely reviewing the Unrestricted Shepard’s Summary, to the point of accepting that a cited Supreme Court case was no longer good law. Further review revealed that Shepard’s had also botched the situation by referencing a lower court decision. Lower courts cannot overrule higher courts.

Praised be commenter Diane for pointing out on April 9 that the Guy case discussed in my March 27 blog entry was overturned by Indiana’s highest court.

Shepard’s did not show the Indiana Supreme Court’s reversal of the foregoing Court of Appeals decision, perhaps because the Supreme Court opinion says "[w]e affirm the trial court’s denial of the motion to suppress," without saying that the intermediate appellate opinion is being reversed. Here is the Shepard’s result, in pertinent part:

Guy v. State, 805 N.E.2d 835, 2004 Ind. App. LEXIS 568 (Ind. Ct. App. 2004)

SHEPARD’S SUMMARY
HIDE

Unrestricted Shepard’s Summary


Caution: Possible negative treatmentSubsequent appellate history contains possible negative analysis.
Citing References:
Caution: Possible negative treatment
Cautionary Analyses:
Distinguished (1)
Other Sources:
Statutes (1)
LexisNexis Headnotes:
HN3 (1), HN5 (3)
Show full text of headnotes

PRIOR HISTORY ( 0 citing references ) Hide Prior History


(CITATION YOU ENTERED):
Guy v. State, 805 N.E.2d 835, 2004 Ind. App. LEXIS 568 (Ind. Ct. App. 2004)

SUBSEQUENT APPELLATE HISTORY ( 2 citing references ) Hide Subsequent Appellate History

Select for Delivery


1.Transfer granted by:
Guy v. State, 822 N.E.2d 969, 2004 Ind. LEXIS 644 (Ind. 2004)


2.Subsequent appeal at:
Guy v. State, 823 N.E.2d 274, 2005 Ind. LEXIS 169 (Ind. 2005)

Consequently, when a lawyer finds favorable case law, his or her ethical obligation is to stop at the point that s/he finds that Shepard’s does not list negative treatment of the case. When a lawyer finds adverse case law, the lawyer needs to be mindful that Shepard’s is not the final word on the matter; the citing court cases are the final word.  

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