14 Updating, Reading, Analyzing, and Organizing Sources

Entering search terms on research platforms and finding primary and secondary sources are really just a small part of a comprehensive research process. Legal analysis, as well as effective communication skills, go hand-in-hand with finding legal sources. For example, as discussed in Chapter 2, you are engaging in legal analysis when you are looking at statutory sections to determine which sections are relevant, reading cases in a list of search results to decide which cases might be mandatory or persuasive authority for your research problem, identifying a topic that requires you to find a secondary source to learn more background information, deciding which cases negatively impact an important case for your legal issue, or identifying gaps in your research that require further investigation. After you have found and skimmed many legal sources, you will need to engage in much deeper analysis to (1) determine if your statute, case, or regulation is still considered good law, (2) identify and define unclear terms in enacted law, (3) understand facts that are determinative in case decisions, (4) accurately articulate court rulings, and (5) synthesize numerous legal sources to accurately communicate the law.

First year legal research and writing courses comprehensively cover updating. This chapter reviews the updating process and tools, and discusses strategies for effective reading, organization, analysis, and synthesis of the sources and authorities you find during the research process.

Learning Goals:

After reading this chapter, you will be able to

1. Explain reasons why you must update sources and authorities that you find during the research process.
2. Explain various times (points in the research process) that you will update sources and authorities.
3. Identify tools available for updating.
4. Identify strategies and techniques for effective reading of sources and authorities.
5. Explain and implement effective strategies for organizing sources and authorities.
6. Explain and implement methods for analyzing and synthesizing sources and authorities.

Why do you update authorities?

Updating legal authorities is a crucial step in the research process so you know how your authorities have been treated by legislatures, courts, and administrative agencies. Also, the updating process often leads you to cases or other sources that you might not have found previously.

When you find a case that seems relevant, you need to make sure that it still represents the current law. If you find a statute, you need to consider if the statute has been amended or held unconstitutional by a court.

When do you update sources and authorities?

Professors and librarians refer to updating as a crucial step in the research process. Often it is discussed as one of the final steps in your research. However, as you have learned by now, legal research is not a linear process. Frequently, your process will circle back around, and you will complete research steps in a different order, depending on the problem and the information you have when you begin.

You will update your sources at many different times during your research process. For example, perhaps you found a statute that seems relevant to your problem. You might see a symbol on Westlaw or Lexis that indicates the existence of pending legislation that might affect the statute. You would follow that link to look at the pending legislation. If you are looking at the annotations to a statute and find a case that looks relevant. You would use Keycite, Shepard’s or B-Cite to see if that case has been affected by subsequent case holdings before you spend a lot of time reading that case comprehensively and relying on it in your analysis. So, updating occurs during the research process as you find and initially evaluate sources.

You will update your authorities toward the end of the research process to make sure your searching has been thorough and to see if any important cases have been decided since you started your research. Finally, before you file any pleading or document with the court, or submit a memorandum to a colleague or supervisor, you will update your legal authorities to make sure that the authorities that you are citing in your document are still good law.

Tools for updating authorities

Citators on major research platforms such as Westlaw (KeyCite), Lexis (Shepard’s), and Bloomberg (B-Cite) are tools for updating legal sources. In addition, you can use “Authority Check” on Fast Case and “How Cited” on Google Scholar to update cases.

Using a citator to retrieve a list of authorities that affect your case, statute, or regulation is only the first step. The more challenging and important step requires you to analyze the impact of the authority on the sources you have found. Keycite, Shepard’s, and B-Cite have a variety of analytical tools that help.

Westlaw (Keycite)

Keycite is the citator service on Westlaw. This is a tool that allows you to see and analyze legal authorities that have cited, discussed, analyzed, or otherwise treated your case or other authority. Keycite uses flags and other symbols to indicate how your case has been treated by other authorities; you can access a legend for these symbols by clicking on the “Powered by KeyCite” link towards the top of the screen when you are looking at a case or statute. For example, a yellow flag next to cases and administrative decisions indicates some negative treatment, but not a reversal or overruling. A yellow flag next to statutes or regulations means that proposed legislation or a proposed rule is available, a court decision has questioned its validity, or a prior version received negative treatment from a court. Other symbols are a red flag, a red-striped flag, a blue-striped flag, and an orange circle with an exclamation mark. These symbols alert you to potentially negative treatment of your authority, but they are only the beginning of your analytical updating process.

If you click on the symbol, Westlaw will link to negative treatment. Note that you can also access negative treatment by clicking on that tab at the top of the screen. You will see a list of negative citing references for your authority. All the negative citing references are organized in a chart with the following columns: treatment, title, date, type, depth, and headnotes. You should use the information in these columns to help you analyze how the negative citing references affect your case or statute.

Treatment

For example, if the treatment column indicates that a case “criticized” your case, that case is probably less of a priority than a case that indicates that it abrogates or overrules your case. The treatment prompts will help you prioritize which cases to read first to understand the status and validity of your case.

Depth

The depth graph is a visual depiction of how much your cases is discussed in the citing case. If you hover your cursor over the bar graph, you will see a text description of the depth of treatment. For example, two bars indicates your case was cited by the case. Three bars means that your case was discussed by the citing case. The depth of treatment is another tool that allows you to prioritize your reading and analysis of the citing authorities.

Headnotes

As you have encountered from your work with case law, headnotes are summaries of legal principles in the case; they are created by Westlaw as research aids. Also, you have probably noticed that cases often address many different legal issues. If you are concerned with a particular legal issue or principle of a case but are not concerned with other legal issues in that case, you can use the Headnotes column to help you select the citing references that deal with your legal issue.

Lexis (Shepard’s)

Shepard’s is the citator service on Lexis. The functionality is similar to Keycite on Westlaw, but the symbols are different. A symbol will appear next to the case name; you can click on that to link to the citing authority. Also, you can use the “Shepardize this Document” link on the right side of the screen to access the whole list of citing authorities. Lexis uses the following symbols: a green diamond with a plus sign is a positive reference; a yellow triangle is a cautionary symbol indicating possible negative treatment; an orange square with the letter Q indicates that validity is questioned; a dark blue octagon is neutral indicating that citing information is available.

In the citing decisions, Shepard’s also provides analytical information on the type of treatment, depth of treatment, and headnotes to aid in your analysis.

Bloomberg (B-Cite)

B-Cite is the citator service for Bloomberg, with a similar functionality to Keycite and Shepard’s. B-Cite has a collection of symbols that alert you to treatment of your authority. On the right side of the authority, you will see an icon for “B-Cite Analysis”; by clicking that icon, you will access a summary of the treatment of your authority. You will also see a link “What are the B-Cite Indicators” where you can access a comprehensive analytical chart explaining all the symbols. For example, negative treatment is indicated by a red square with a minus sign; cautionary treatment is depicted by a yellow square with a white triangle; distinguishing treatment is depicted by a blue square with a white back slash; and positive treatment is indicated by a green square with a plus sign. If you select the case analysis list, or select a particular symbol to see the citing authorities, you will see a table with type of treatment and depth of treatment. You can also select a “see details” link to access the particular parts of the citing authority that discuss or refer to your case.

Fast Case (Authority Check)

The tools on Fast Case are less sophisticated than citator services on Westlaw, Lexis, and Bloomberg. On the left side of the screen, you can access the “Authority Check” icon to see a citation report for your authority. If a case has no negative treatment, Fast Case uses a white flag icon; if a case has negative treatment, you will see a red flag icon. Click on those icons to see the citator report.

Google Scholar (How Cited)

If you are using Google Scholar for case law research, you will find a “How citied” link on the left side. You will see a list of excerpts from cases under the heading “How this document has been cited” and a list of cases under the “Cited By” heading. Google Scholar does not provide the analytical tools that the commercial databases provide. However, Google Scholar is freely available to everyone.

How to use citator information

The analytical tools on commercial databases will enhance the efficiency of your analytical process, but you will still need to do the more time-consuming work of reading the cited authorities that affect your case or statute in an active, critical, and reflective way. The next section provides some strategies for effective legal reading.

Effective reading strategies

Many excellent articles and books discuss effective legal reading strategies. A few important points emerge from those studies and discussions: 1. Legal reading is different from other types of reading; 2. Students who read with a professional purpose and use critical reading strategies read more effectively and have higher grades; and 3. Students can learn to use effective legal reading strategies.

Resources on legal reading strategies:

Legal reading is different

In your undergraduate classes, most likely you were reading texts, articles, and other materials to gain a general understanding of a subject. The authors of these texts were writing for the purpose of describing information for the reader to understand the topic.

In legal sources such as cases, statutes, and regulations, the author’s purpose is not to explain or describe general information to the reader. In cases, judges are issuing a legal ruling by applying law to a set of facts and listing the reasons for a particular decision. Statutes set out a law as passed by a legislature, using language that often has a precise meaning. In issuing regulations or rules, administrative agencies use specific language to implement and enforce those statutes. As someone reading legal authorities, your purpose is not to gain a general understanding of a topic, but rather to solve a legal problem based on applying legal rules to your client’s particular facts. Adding further complexity, legal authorities contain terminology that may be unfamiliar to the reader. Therefore, a successful legal reader needs to read purposefully, actively, critically, and reflectively.

Successful students read with professional purpose

Several studies show that students who read with purpose have higher grades than students who do not read with a purpose. For further information on these studies, please read the following resources:

Leah M. Christensen, Legal Reading and Success in Law School: An Empirical Study, 30 Seattle U. L. Rev. 603 (2007).

Dorothy Deegan, Exploring Individual Differences Among Novices Reading in a Specific Domain: The Case of Law, 30 Reading Res. Q. 154 (1995).

Mary A. Lundeberg, Metacognitive Aspects of Reading Comprehension: Studying Understanding in Legal Case Analysis, 22 Reading Res. Q. 407 (1987).

Laurel C. Oates, Beating the Odds: Reading Strategies of Law Students Admitted Through Alternative Admissions Programs, 83 Iowa L. Rev. 139 (1997).

What is reading with a professional purpose?

What does it mean to read purposefully and actively? When you read a case, for example, you take on a professional role, such as a lawyer representing a client, or a judge deciding a legal issue. What do you need to find in, or learn from, that case to fulfill that professional role?

As a lawyer advocating for a client, you would examine and give meaning to the case based on your representation of a client: What is happening procedurally? Who are the parties? How does the case relate to others with similar issues? Is the court addressing the precise legal issue that you are investigating? How do the case facts relate to your client’s situation? What are the specific arguments made by the parties in the case, and could you make those arguments in your client’s situation?

As a judge reading a case, you are examining the case in the context of deciding how the law applies to the facts before you: What is the procedural posture of the case? Who are the parties? What are the applicable rules? Does the case affect the decision you will render? How does the case affect your decision?

When you adopt one of these roles in your reading, you are becoming an active, critical, and reflective reader by asking yourself questions, challenging the text, reflecting on the information, and thinking about the parts of the case strategically.

Strategies for reading critically, actively, and reflectively

Below is a list of specific strategies to use to become a more effective reader.

Prior to reading:

•  Find a setting that is comfortable and free of distractions
• Connect with your professional purpose
• Establish the context of the case: note the date of the case; consider the social and procedural context; note the identity of the parties
• Articulate how the case connects to your pre-existing knowledge

During reading:

• Read all the headings and other structural aspects of the case (i.e. the first sentence of each paragraph) before you read the case carefully
• Comprehend the facts
• Predict what you will learn from the case
• Think about what questions will be answered
• Develop new questions as you are reading
• Create graphic depictions of ideas, topics, and subtopics
• Annotate the case with your questions and observations
• Paraphrase what you are reading
• Look up terms and solve confusions before you move on in your reading
• Identify the main ideas in the issue, holding, and court’s reasoning
• Identify the legal rules

After reading:

• Evaluate the court’s reasoning
• Brief the case
• Ask yourself questions
• Ask questions to others (professors, colleagues)
• Connect the case to your existing knowledge and experiences
• Determine how the case fits with other cases and write a synthesis

Effective organization strategies

Legal professionals use a variety of tools and methods for organizing legal sources. Organization should take place throughout the research process rather than waiting until the end to wade through a mass of citations or notes. Chapters 4, 5, and 6 describe suggested activities and assignments in conjunction with this text; one of those assignments is developing a research log to track research process and results. A log, which can take many forms, is one good way to organize your research as you are working through the research process. A log will also help you at the end of your research process when you are analyzing and synthesizing your research. The major research platforms, Lexis, and Westlaw, provide some tools to help with tracking and organizing research as well.

Research log

Research logs track research process steps, identify resources found during that process, and describe the information in those resources relevant to the legal problem. They can take the form of charts, tables, outlines, or spreadsheets. You should use a form that makes sense to you but is organized and comprehensive enough so that you can easily communicate crucial research information to a colleague or supervisor. Chapter 5 provides examples of research logs for inspiration.

Westlaw and Lexis

Westlaw and Lexis have folder systems in which to organize research. Also, you can use several tools to highlight and annotate the sources you find on Westlaw or Lexis. While these tools are helpful for research conducted on commercial platforms, most likely you will use freely available websites and other sources outside of commercial platforms, so you will need a way to collect and organize all of your research in one place.

Effective strategies for analyzing and synthesizing sources and authorities

As discussed in Chapter 2, legal analysis and legal research are intertwined. You engage in legal analysis starting in the first step of the research process when you are thinking about your legal problem. As you read secondary sources, your analysis grows more complex and detailed. Your analysis of the problem gains structure as you discern statutory requirements or common law elements of a claim or criminal violation. While you will engage in deep reading and analysis of each statute or case separately to gain understanding, your ultimate goal with legal research is to synthesize all the legal authorities to comprehend the applicable law and be able to communicate how it applies to your client’s situation.

Many people choose to create a detailed outline of their analysis and synthesis of legal research results. Others may find that charts or tables help them analyze and synthesize their research. Whatever form you choose for your analysis and synthesis, you should identify the legal authority (case, statute, regulation), state the rule (elements, factors, principle), explain the rule, and describe how the rule applies to your client’s situation. By clearly identifying all of these analytical parts, you will be able to see how the parts fit together into a synthesized body of law.

Below are some examples of charts, tables, and outlines to use as tools for organization, analysis, and synthesis.

Example 1: Table

Statement of Legal Issue:

Client’s facts:

Jurisdiction:

Example 2: Outline

1. First issue or sub-issue: statement of legal issue
   1. Client’s facts
   2. Authority 1 (statute, case, etc)
      1. Rule
      2. Rule explanation
      3. Application to client’s facts
      4. Preliminary conclusion
   3. Authority 2 (statute, case, etc.)
      1. Rule
      2. Rule explanation
      3. Application to client’s facts
      4. Preliminary conclusion
2. Second issue or sub-issue: statement of the legal issue
   1. Client’s facts
   2. Authority 1
      1. Rule
      2. Rule explanation
      3. Application to client’s facts
      4. Preliminary conclusion

StudenT discussion and reflection questions

1. What strategies have you used to read efficiently and effectively?
2. How have your legal reading strategies changed over time?
3. What tools do you use to organize your research?
4. What is the most challenging aspect of organizing and analyzing your research? Why?

Contribute a discussion or reflection question to this section.