Shepard’s Legal Information Analysis Mar. 2005, Taiwan By Jensen Wang For educational purposes...

Shepard’s Shepard’s Legal Information Legal Information AnalysisAnalysis

Mar. 2005, Taiwan

By Jensen Wang

For educational purposes only

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The Seminar on Research and Application of Legal MaterialThe Seminar on Research and Application of Legal Material

AGENDA OF PRESENTATIONAGENDA OF PRESENTATION

1. Introduction on Shepardization 1. Introduction on Shepardization

2. Shepard’s on Caselaw 2. Shepard’s on Caselaw

3. Case Analysis for Commonwealth Materials3. Case Analysis for Commonwealth Materials

4. Bill Tracking & RegAlert4. Bill Tracking & RegAlert

5. Questions & Answers5. Questions & Answers

Legal ResearchLegal Research

Why we need Shepard’s / Shepardization?1. Counsel’s Duty

“Moreover, the failure to cite, if not Huang, at least Pisano, decided almost a year earlier, is a violation of counsel's "duty to disclose directly adverse authority." Counsel claim to have been "unaware of [those cases] until the oral argument on the motion." For counsel to have been unaware of those cases means that they did not Shepardize their principal authority … Thus their failure to cite adverse authority is not excusable.”

By Schwarzer J. in Golden Eagle Distributing Corp. v. Burroughs Corp., 40 Fed. R. Serv. 2d (Callaghan) 346


Why we need Shepard’s / Shepardization?2. Inexcusable failure / Professional negligence

“It is really inexcusable for any lawyer to fail, as a matter of routine, to Shepardize all cited cases (a process that has been made much simpler today than it was in the past, given the facility for doing so…). Shepardization would of course have revealed that the "precedent" no longer qualified as such”.

By Milton Shadur J. in Gosnell v. Rentokil, Inc., 175 F.R.D. 508


Why we need Shepard’s / Shepardization?3. Dismissal of Application

“Petitioner's lead counsel admits that neither he nor any of the lawyers (including local Georgia counsel) or paralegals assisting him made any effort prior to the filing of the second petition to research the decided cases upon which he now relies…By simply "Shepardizing" the Fifth Circuit's prior decision in their own case, counsel would have been alerted to the decision in Westbrook, which in turn relies upon Spivey and controls Finney. Similarly, the use of basic research techniques such as …Lexis would have identified the possible relevance of these cases prior to the filing of petitioner's second petition…Accordingly, the court hereby determines that petitioner's failure to raise this claim in his second habeas petition was inexcusable”.

By Owens, District Judge in Stephens v. Kemp, 602 F. Supp. 960

Shepard’sShepard’s

Shepardization involves the following steps:Shepardization involves the following steps:

1.1. Identification of Leading AuthoritiesIdentification of Leading Authorities

2.2. Searching of Adverse AuthoritiesSearching of Adverse Authorities

3.3. Determination of ApplicabilityDetermination of Applicability

4.4. Eclipse on Future DevelopmentEclipse on Future Development

Identification of Leading AuthoritiesIdentification of Leading Authorities

Example: whether the employer can rely on the arbitration agreement to staythe proceedings in courts?

Employee EmployerEmployment agreement

Arbitration Clause

Equal Employment Opportunity Commission

Arbitration Tribunal

Federal Arbitration ActDisability Discrimination

Rig

ht-to

-sue

L

ette

r

(Signed a Release or Waiver?)


Federal Arbitration Act and stay w/s proceeding and refer! w/s arbitration and Discrimination


- Warning: Negative treatment is indicated - Caution: Possible negative treatment

- Positive treatment is indicated - Citing Refs. With Analysis Available

- Citation information available


Warning: Negative treatment is indicatedCaution: Possible negative treatmentPositive treatment is indicatedCiting Refs. With Analysis AvailableCitation information available

Supreme Court

Court of Appeal

2001

Warning

Court of Appeal

Supreme Court

Overruled

Caution

Distinguished

Affirmed

Positive Treatment

Court of Appeal

Applied

2002 2003

Citation

Cited


An agreement between an employer and an employee to arbitrate employment-related disputes does not bar the EEOC from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an ADA enforcement action.


Shepard Legend shows - Caution: Possible negative treatment

Must Retrieve Shepard’s Report to Check Adverse Authorities


Retrieval of Shepard’s Report


““In the time since Waffle House was decided, the Supreme Court's reasoning In the time since Waffle House was decided, the Supreme Court's reasoning has not been explicitly extended to apply to situations where an employee has has not been explicitly extended to apply to situations where an employee has signed a waiver or release, rather than an arbitration agreement. Indeed, the signed a waiver or release, rather than an arbitration agreement. Indeed, the Supreme Court suggested that whether such a extension was in order was an Supreme Court suggested that whether such a extension was in order was an "open question“"open question“……The court considers the extension of Waffle House's The court considers the extension of Waffle House's reasoning in relationship to arbitration agreements, to waivers and releases, reasoning in relationship to arbitration agreements, to waivers and releases, quite reasonablequite reasonable””. .

By DOMINIC J. SQUATRITO in Senich v. American-Republican, Inc., 215 F.R.D. 40


“However, the issue here is not whether non-signatories to the agreement can be compelled to arbitrate; rather, it is

whether these non-signatories may compel plaintiff, admittedly a party to the contract, to arbitrate. See Choctaw,

271 F.3d at 406 (noting this distinction). EEOC v. Waffle House does not alter this analysis, and the claims against the

individual defendants are subject to the arbitration agreement”.

Gambardella v. Pentec, Inc., 218 F. Supp. 2d 237


Discrimination Claims can be maintained

Signature of Release & Waiver has no effect on

the EEOC suit

The claims against the individual defendants are still subject to the

arbitration agreement


Shepard’s Report gives the full picture of the authorities and the related decisions

ApplicabilityApplicability

534 U.S. 279


California State Courts


After reading the state courts treatment on the case, it can be determined whether the case is fully applicable to a particular

jurisdiction.

Eclipse for Future DevelopmentEclipse for Future Development

Verification of Commonwealth InformationVerification of Commonwealth Information


stay w/s proceeding and refer! w/s arbitration and waive


Hong Kong

England

Canada


Positive Treatment Technology: making use of treatment phrases


Negative Treatment


Case Analysis provides automatic checking on treatment phrase. Unlike Shepard’s report, it was not perused by editors and may not

totally reflect the decision of the court.

Bill TrackingBill Tracking

Bill Tracking – checking the current status of the Bills in U.S.

RegAlert – provide alert to the newly issued regulations on a topic


Requests the Council on Science and Technology to

create a study group on how the State should treat

intellectual property created under state contracts.

Full Text of BillFull Text of Bill

RegAlertRegAlert

ConclusionConclusion

LexisNexis allow lawyers to check and verify the search Results and make sure the authorities submitted to client or court accurately represent the current law in force.

Q&As

Any Questions?

The Seminar on Research and Application of Legal MaterialThe Seminar on Research and Application of Legal Material

Thank You!

Shepard’s Legal Information Analysis Mar. 2005, Taiwan By Jensen Wang For educational purposes...

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