10. VALIDATE YOUR RESEARCH

'Validation' is the process of determining whether your case is good law. An opinion is citable as long as it has not been overruled for your point of law. Validation begins with a book and page citation. For the purposes of this tutorial we're going to validate Lyndonville Savings Bank v. Lussier, 211 F.3d 697 (2nd Cir. 1999). Thereafter, we're going to work with a U.S. Supreme Court case and solve for the most significant information management issue in all of legal research.

'Validation' is not the process of finding every document in the universe that has ever cited your case. Here at TheLaw.net Corporation, we call that 'Discretionary Insight' which stands in stark contrast to 'Validation' a.k.a. 'Mandatory Insight.'

Nor is 'Validation' the process of checking for flags and going to lunch. We call that 'Malpractice.' As did every law professor you ever had.


MISSION CRITICAL DISCUSSION

Resist the urge to jump ahead. We know you're a smart lawyer. But, we've thought this subject matter through in ways that you have not. Trust us. This post will:

>Save you hours and hours at the computer, as it has for our legions of subscribers.
>Save you tens, if not hundreds of thousands of dollars in legal research costs over the course of your career: costs which, for West and Lexis subscribers, are increasingly difficult to recover.
>This post guarantees you will be the most informed lawyer in the room when it comes to the points of law you care about most.

At oral argument you'll be able to rattle off like so: "Your Honor, my opponent cites Smith v. Jones, which has been cited 12 times generally, but only once — in footnote seven — for his point of law. By contrast, your Honor, we rely on Jones v. Smith, which has been cited 29 times generally — 27 times for our point of law — making it the most cited, most relevant opinion in this jurisdiction for our point of law."

Thereafter, you get to watch as opposing counsel and the court rubberneck, implicitly acknowledging your Godlike knowledge as to the point of law at bar.


THE THREE PRONGS OF VALIDATION

Validation implicates three metrics: jurisdiction, point of law, and recency. Nirvana is when you know how to find any opinion citing your opinion, from the court(s) you specify, for the point of law — or fine point of law — you specify in one mouseclick. By the end of this post, you will know how to do this. How cool is that?

More than half of all American judicial opinions have never been cited. Another huge slice has been cited fewer than five times. Appellate opinions typically resolve three to five questions of law. Red and yellow flags provide you with the optical illusion of actual knowledge, when all they really do is provide you with anecdotal information that on a given day, a given, unknown human being in a cube far away, determined that a given opinion had been distinguished, overruled or rendered moot, to some extent, for some given point of law. This is why, should you care to compare, you will learn — as we have — that the Lexis Flagplanters frequently disagree with West Flagplanters and vice versa.

All of which underscores the threshold point of this post: that you and only you have the ability to determine the precedential value that should be assigned to a given opinion, because you and only you understand the totality of circumstances surrounding your case or controversy.


MASS CUSTOMIZED VALIDATION v. INDIVIDUALIZED VALIDATION

West has KeyCite. Lexis has Shepards. We have CiteTrak. To the extent that these tools link you to cases citing your case, they represent a mass customized approach to Validation. They are generic in the sense that they do not tell you if your case has been reversed or distinguished for your point of law, to say nothing of any fine points.

The familiar red and yellow flags invite you to check flagged opinions for the bad news. But many researchers see a red flag and start over, never checking to see if the flag has been planted for their point of law. It is a statistical fact that more often than not a red flag has been planted for a point of law that is irrelevant to your search, because appellate opinions typically resolve three to five questions of law.

It is also a fact that the entire flag system places one at risk of missing bad news whenever a flag should have been planted but was not, due to human error and subjective judgment.


AVOID INFORMATION OVERLOAD

What about information overload? Take KeyCite. These days it doesn't seem to matter what citation you KeyCite, they seem to always tell you it's been cited hundreds and hundreds of times. It's like the programmers are running the asylum.

You troll through your results only to learn that your case has been cited 500 times in briefs and memos written by other lawyers. West grabs these e-filed documents and churns them in their database. All you want to know is whether your case is good law and they keep hammering you. "Want fries with that? Wouldn't you like to purchase this brief written by Attorney Jones from North Fork, Idaho? Are you sure? Nag, nag, nag..."

Then you have the dozens of secondary resources and all the unpublished opinions that cannot be cited as law. Finally, you get down to the eight opinions that cite your case. Five of them are in your primary jurisdiction, i.e. the court you care about. Three cite your case for your point of law.

But, it took you a long time and potentially a lot of money to get there. Make no mistake. KeyCite is not about good law anymore. It's about the cash register.


STEER CLEAR OF POOBAHS

The gatekeepers of legal research — i.e. law librarians and West Trainers, love to say: "You never know where you'll find the answer!"

They constantly promote this 'Lost in the Wilderness' approach to legal research. The insulting, disingenuous implication is that you know nothing about the precedent that drives your practice area, and that without these poobahs to guide you, you'd be lost in the wilderness, missing cases and being sued for malpractice. They want you managing to the risk. We want you managing to the reward.

These people are not elite researchers, most have never directly represented a client, and even fewer have ever met a payroll. For these and other reasons, they are to be ignored.

Our subscribers are elite researchers. As our subscriber you do not perform Computer Assisted Legal Research. It's just legal research. That it's done on a computer is a given. It's nothing new. People have been doing it since 1975. So, let stop being enamored with the technology.

Understand this. No one knows how to do what we're going to show you how to do in this post. The entire legal research cartel has an enormous economic incentive to ensure that you remain lost in the wilderness performing stumble-over research, dependant on strategies that simply do not represent a best practices approach to problem solving.

Our incentive is to streamline, simplify and educate, resulting in more insight faster. As our subscriber, you are an elite researcher, per se. Or, you will be in a few minutes!


ANCHOR + FILTER = 'HOT LIST'

We want you to know how to find the handful of opinions, from the courts you care about, that cite your case for the point, or fine point, of law you're focused on. We call this your 'Hot List."

Let's ask Equalizer to produce a list of cases citing your case. To do this, select the two or three courts that have the power to render your case 'bad law.' We use Lyndonville Savings Bank v. Lussier, 211 F.3d 697 (2nd Cir. 1999) in this teaching example. The only courts that have the ability to undo any holdings in this opinion is the Second Circuit En Banc and the United States Supreme Court. Check these two databases. If you don't know how to activate databases by jurisdiction, click here.

Then enter: "211 F.3d 697" and click SEARCH. It's important to include the quotation marks. This turns your book and page cite into a search term. This is citation driven search. You've been doing them your entire career using KeyCite and Shepards. Again, this is nothing new.

We receive 13 hits, all from the Second Circuit. It would take less than five minutes to check them all. But, let's pivot. Let's individualize the validation of this citation. We like this case for what it says about 18 U.S.C. 3663(h)(2) (restitution).

Our query remains anchored by the citation. But, let's filter on the word 'restitution.' Our query looks like this: "211 F.3d 697" & restitution

We receive one hit and it's our case, meaning our case is good law. It has to be since no subsequent opinion in the Second Circuit has cited our case for our point of law.

If we go back to our search screen and click 'Select All' a national search reveals 15 opinions that have cited our case for our point of law. If you desire this additional 'Discretionary Insight' this is your new 'Hot List'.

If you want to be more specific you could enter: "211 F.3d 697" & 3663

This query finds opinions that expressly cite your opinion and your statute. There are seven; six if you exclude our case. If you re-sort your results by clicking 'Decision Date' you will instantly see that Huml v. Vlazny, 716 N.W.2d 807 (Wis. 2006) is the most recent case nationally to cite our opinion for our point of law.

It takes less than three minutes to look at these six Hot Listed opinions. And now you know everything there is to know about how your case has been treated for your point of law.

KeyCite tells us that our case has been cited in 343 documents. 'Documents' is a West term of art that includes all the things West wants to sell you (secondary materials, briefs, memos and other court documents prepared by counsel) together with judicial opinions nationally. That's the default.

We did an end-run around this nonsense by simply asking Equalizer to produce a Hot List of the opinions, from the selected jurisdictions, that have cited our case for our point of law.

Congratulations! This is Advanced Boolean Logic. This is best practices. You are officially an elite researcher. ('Advanced' doesn't mean difficult. It means no one does it.) If there's anything you don't understand, call us and we'll schedule an individualized web conference for some free training!

Beyond that, if you have access to Westlaw's ALLCASES Database, enter our query in the box you use to perform keyword search and you will receive the identical seven judicial opinions.


VALIDATING THE U.S. SUPREME COURT

It doesn't matter what research service you use, opinions issued by the United States Supreme Court present a horrible information management issue. This specialized tutorial shows you how to quickly tame this issue.

U.S. Supreme Court opinions are unique in that they typically treat a single question of law, with nine justices weighing in to the tune of 50,000 words. Thereafter, the opinion is cited thousands of times nationally. This is no problem for Equalizer.

We again stay focused on jurisdiction, point of law and recency. We're going to bring the Supremes down to street level in a click or two.

For this tutorial let's find the most cited opinion in America for a fine point of law. Check All Jurisdictions, enter 42 /5 1983 & "excessive force" & police

This query, anchored by the Federal civil rights statute (the most cited law in America), asks Equalizer to produce a list of opinions where the section number of the statute appears within five words of the title number and the terms 'excessive force' and 'police' appear on at least one occasion anywhere in the opinion.

The most cited opinion is Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

Now, from the Jurisdiction Drop Down Menu (upper left of the page) select your primary Federal circuit to reveal the subset of Parratt cites relevant to your world. We selected the United States Court of Appeals for the Ninth Circuit which had cited Parratt 331 times as of the date of this post. Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992) appears to be most relevant based on citation and search term frequency. (cf: Relevance Percentages with Citation Frequency)

How many opinions expressly cite Parratt in the context of our original query?

All we have to do to find out is add our book and page citation as an additional query filter: "451 U.S. 527" & 42 /5 1983 & "excessive force" & police

Fourteen opinions match this search. The upshot is that in just a couple of minutes, we are able to take a national case locally for precisely the reasons we care about. At every stage, we are guided by highly unique search terms: case and statutory citations. We do not guess words.

'Cherry Picking' works so much better than 'Stumble Over.' We drop from more than 3,000 citations, to just over 300 citations, to a 'Hot List' of 14 citations in our primary jurisdiction that cite our case for the precise, informed reasons we specify.

Assuming you even have an all-state, all-Federal plan with West (which runs about $10K annually for a single attorney) try replicating this process with KeyCite. Let us know how that goes for you!


NAVIGATE YOUR HOTLIST

Once you have your 'Hot List' click 'Decision Date'. This may well be the end of your inquiry. If you are satisfied that the most recent case to cite your case in your primary jurisdiction follows your case, you may decide to stop there.

It's worth remembering that courts typically follow. When they reverse it makes news.

In the alternative, you may decide you want to spend a few seconds with each Hot Listed case to see if any warrant reading in full. After all, this is your Hot List!

To do this, click the first Hot Listed case. On the resulting screen, note that the entire Hot List has been carried forward and is displayed in the frame to the left of the frame displaying the full text of your opinion.

Now, look at the Highlight Drop Down Menu (upper center page) and note that 'All Search Terms' is displayed by default. Pop open this drop down menu and select the page number of the citation you are validating. After the page refreshes click the link captioned 'Next Term'. This jumps you right to your citation in the case so you can see what the court has to say about your case. This way you don't have to read the case unless it's warranted. When you're done click the next hit on your results list and repeat.

If you don't want to use the built-in utility, you can click the FIND BUTTON in Equalizer's Button Bar (far upper left) or select FIND from the EDIT MENU (way far upper left) or hold CTRL-F. Thereafter, you can enter the full citation or just the page number to jump to your citation in each opinion on your Hot List. (The last thing we want is lawyers reading opinions!)

Whichever method you choose, it takes only a few seconds per opinion to develop a Godlike knowledge of how your case has been treated in your primary jurisdiction.


SUMMARY

a) Validation implicates jurisdiction, point of law, and recency.

b) Anchor + Filter = Hot List

c) Results are sortable by search term frequency (Relevance), recency (Decision Date) and citation frequency (CiteTrak Entire Database).

d) Navigation to your citation in the text of opinions citing your case provides Mandatory and/or Discretionary Insight.