CHAPTER 8 CITATORS

• Jurisdiction: Oregon

Chapter 8 Citators

Before relying on any legal authority, a researcher must know how that authority has subsequently been treated by courts, legislatures, or agencies. A case may have been reversed on appeal; a statute may have been amended by a later legislature or declared unconstitutional by a court. To be sure that cases, statutes, and other authorities represent the current law requires "updating." The tools used for updating are called "citators." Citators list all of the documents that have subsequently cited the authority being updated. The more sophisticated citators also indicate the possible impact of those documents on the authority.¹

"Shepard's" is the citator available on Lexis; Westlaw's citator is called "KeyCite." These are the premier online citators and the focus of this chapter, but others are available. For example, Bloomberg provides "BCite," Fastcase uses "Authority Check," and Google Scholar has "How cited." Using any of these services to retrieve a list of citations is quite easy, often simply requiring you to click on a tab. Analyzing the citator results and reading the authorities listed is the challenging—and the rewarding—part of updating. Even sophisticated citators like Shepard's and KeyCite are just tools to aid you in determining whether an authority is still respected as "good law."

Courts expect lawyers to update authorities to ensure that the lawyers' arguments are well supported and present the current state of the law.² Beyond meeting this ethical obligation, you should use citators to expand your research. A citator's list of authorities that cite a case or statute you know is relevant to your analysis might include additional resources that you have not uncovered through other steps in your research.

I. Updating Outline

Updating an authority (called the "cited source") requires you to first retrieve a list of documents that cite that authority (sometimes called "citing sources," "citing references" or "citing authorities"). Then you must analyze the symbols provided by the citator, limit the results on the citator list (if necessary), and read the citing sources to determine their impact on your authority. This process is outlined in Table 8-1. While the outline is generic, this chapter uses an Oregon case as the authority being updated.

Table 8-1. Outline for Updating Online

1. Access the citator list containing the information you need (e.g., only negative treatment, all citing decisions, just secondary sources).
2. Analyze the symbols provided by the citator for each source.
3. Consider limiting the list of citing sources by jurisdiction, date, or other function.
4. Prioritize and read the citing sources. Analyze the impact, if any, these sources have on the authority you are updating.

The next two parts of this chapter explain the mechanics of the first three steps of updating using KeyCite and Shepard's. The most important aspect of updating is the final step: reading the citing sources. A citator is an invaluable tool for determining which sources might deserve your attention. But then you must read the relevant citing authorities to determine the impact of each on your analysis.

Clicking on an authority's reference in a citator list will typically take you to the point in the corresponding document where your case is cited. Quickly skim that portion of the document to determine its relevance to your research. If a source is on point, carefully analyze its impact on your case. The new source might change the legal rule in your case, either explicitly by reversing it or overruling it or implicitly by distinguishing it or explaining it in a new way. In contrast, the new source might follow the legal rule in your case but apply it to a new set of facts; if those facts are closer to your client's situation, the case can be very helpful to your argument. As a third example, the new source might distinguish or criticize your case. If the criticism is relevant to your argument, you will need to be able to explain why the criticism is not harmful to your client's claim.

II. Updating with KeyCite on Westlaw

The following discussion uses State v. Hart, 222 Or App 285 (2008), as an example of updating a case. Thus, Hart is the "cited source," and the documents retrieved through updating are "citing sources."

A. Access the Citator Lists

You can access KeyCite on Westlaw in three ways. First, Westlaw provides tabs that link to KeyCite whenever you open a case, statute, regulation, or other document in the KeyCite system. These tabs appear at the top of the Westlaw screen, just above the document's heading. See Figure 8-1. Each case has several tabs: Filings, Negative Treatment, History, Citing References, and Table of Authorities. To the right of the tabs is the icon "Powered by KeyCite"; clicking on that icon gives helpful information about the KeyCite system. Second, you can click on a KeyCite status flag, such as the yellow flag at the top left of the screen shown in Figure 8-1. Third, you can type kc or keycite followed by the case citation in Westlaw's...