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Legal Writing

Westlaw tip of the week: Checking cases with KeyCite

Reference Attorneys  Thomson Reuters

Reference Attorneys  Thomson Reuters

Since the legal standing or authority of a case can change over time, it is important for you to verify that the cases you cite as precedent are still valid. This tip explains how you can use KeyCite in Westlaw Edge to check caselaw citations so you can proceed with confidence that your authorities are good law.

What are KeyCite status flags — and what do they mean?

When reviewing a case in Westlaw Edge, you should look for a KeyCite flag at the top of the document. Not every case will have one, but if it does, it means the case has some negative treatment — such as being overruled, superseded, or not followed by another court for some reason.

A red flag warns that the case is no longer good law for at least one of the points of law it contains. For instance, the decision was reversed on appeal or overturned years later by a decision of the same court.

A yellow flag warns that the case has some negative history but has not been reversed or overruled. For example, the reasoning of the decision was criticized or its holding was limited to a specific set of facts.

A blue-striped flag warns that the case has been appealed to the U.S. Court of Appeals or the U.S. Supreme Court (excluding appeals originating from agencies).

KeyCite Overruling Risk: an overview

If you don’t see one of the flags listed above, that doesn’t necessarily mean you have nothing to worry about. In fact, there is a chance that the case was implicitly overruled, even if it wasn’t explicitly overruled.

For example, assume a particular case (Case A) relies upon another older case (Case B) for a specific point of law. Let’s also assume that a third case (Case C) has explicitly overruled Case B. But if Case C does not also explicitly overrule Case A in addition to Case B, Case A will technically not have any direct negative treatment — even though the point of law it is relying upon may have been overruled.

Sound confusing? Well, it can be, which is why Westlaw Edge now has KeyCite Overruling Risk, which cautions you when a point of law has been implicitly overruled.

The KeyCite Overruling Risk icon warns that the case may have been implicitly undermined due to its reliance on another case that has been overruled.

Instantly see the most negative treatment

Whether case has a red flag, a yellow flag, or it has been implicitly undermined in some way, the most negative treatment will be displayed next to the flag or KeyCite Overruling Risk icon at the top of the document. Most negative treatment typically consists of a phrase such as “Overruled by,” “Abrogated by,” “Distinguished by,” or “Judgment Vacated by,” and it includes a link to the underlying document, if available.

KeyCite provides this important information up front (no clicks needed) so you can quickly determine whether to investigate further or rely on the case.

Investigating negative KeyCite history

If you wish to view the negative history associated with a case, you can click on the KeyCite flag/icon or the “Negative History” tab.

The Negative Treatment tab provides the negative history for a case, which includes all negative direct history and negative citing references. Westlaw Edge will mark the document with the most negative treatment so you can quickly spot the most relevant information. To identify the “most negative” document, KeyCite editors consider the nature of the treatment, court level, jurisdiction, date, and other factors.

View the history of the case

You can also click the “History tab” to view the direct history of a case and related references. The left column in the History tab includes the cases in the direct history and the related references. The History tab also displays the direct history of the case in a graphical view on the right side of the page. You can restrict the direct history display by choosing an option from the View drop-down list.

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