How to Shepardize a Case

"Shepardize" is a trademark of LexisNexis, but lawyers use it generically to mean "run this authority through a citator." A citator does two separate jobs, and confusing them is the most common student error. First, it reports direct history: what happened to this exact case as it moved up and down the appellate ladder — affirmed, reversed, vacated, remanded, certiorari granted or denied. Second, it reports citing decisions: what every later court, and often secondary sources and briefs, has said about the case.

A case can have clean direct history and still be dead. Bowers v. Hardwick was never reversed on appeal; it was overruled seventeen years later by a different case, Lawrence v. Texas. That fact shows up only in the citing-decisions half of the report. Conversely, a case can be reversed on Issue A and remain perfectly good authority on Issue B, which is why you narrow by point of law before you panic.

You Shepardize for three reasons: to confirm the authority is still good, to satisfy your duty of candor and competence, and — often the most valuable use — to find newer cases. The list of decisions citing your case is a curated set of on-point authority that no keyword search will produce as cleanly.

Learn the symbols for whichever platform your school gives you, but never treat them as conclusions. Every signal is generated by an editor or an algorithm evaluating the case as a whole, at some level of generality that may have nothing to do with your proposition.

Do this in order every time, and it takes about four minutes for a routine case.

First, pull up the case and open the citator tab (Shepard's, KeyCite, or BCite). Second, read direct history before anything else — if your trial court opinion was reversed, stop and go read the appellate decision. Third, open the negative treatment list and read it in full if it is short; if it runs to hundreds of entries, filter it. Fourth, narrow by headnote or point of law so you see only the citing cases that engaged with your issue. Fifth, filter by jurisdiction: a Ninth Circuit case criticizing your Fifth Circuit authority matters far less than an intervening Fifth Circuit or Supreme Court decision. Sixth, filter by depth of treatment — both platforms show how substantively each citing case discussed yours — and read the deepest treatments first. Seventh, click through and actually read the negative citing cases. Eighth, sort the remaining citing decisions by date and skim the most recent to see whether the doctrine has moved.

Then repeat the process on the key cases you found. Citator work is recursive: the case that criticized yours may itself have been superseded by statute.

The signal covers the case; you cite a proposition. Use the headnote-level tools. On Westlaw, KeyCite flags appear next to individual headnotes, and you can restrict citing references to a specific headnote number. On Lexis, Shepard's lets you narrow citing decisions by the LexisNexis headnote your language came from. If the red flag attaches to headnote 4 and you are citing headnote 7, the case may be entirely usable — but say so in your memo rather than leaving your reader to discover the flag.

Watch for treatment that is negative without being fatal. "Distinguished" usually means the case survives on its own facts. "Limited" and "questioned" mean the holding has narrowed and you should cite the narrowing case too. "Abrogated by" and "superseded by statute" mean the reasoning has been displaced even though no court formally said "overruled." And when the Supreme Court overrules a doctrinal framework, earlier cases decided under it are not automatically void — Loper Bright Enterprises v. Raimondo overruled Chevron but expressly left prior holdings that had relied on Chevron standing under stare decisis. Read the overruling opinion's language on that point instead of assuming.

Finally, check the flip side: run the Table of Authorities (Westlaw and Bloomberg) or Shepard's Table of Authorities to see whether the case you want to cite rests on authority that has since been gutted. That is what KeyCite's Overruling Risk triangle is designed to catch.

Bluebook Rule 10.7 requires you to give subsequent history, and Table T8 supplies the italicized explanatory phrases. Prior history is included only when it is significant to the point you are making. The forms look like this:

Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003). For appellate history: Smith v. Jones, 123 F. Supp. 3d 456 (S.D.N.Y. 2015), aff'd, 800 F.3d 789 (2d Cir. 2015). Note the comma-and-italics pattern: the explanatory phrase is italicized and set off by a comma, and "aff'd" and "rev'd" take a comma before them but no case name when the parties are the same.

On denials of certiorari, Rule 10.7 tells you to omit them unless the decision is less than two years old or the denial is particularly relevant. Students over-include "cert. denied" because the citator displays it prominently; resist. Separately, Rule 10.6.1 governs weight-of-authority parentheticals such as (en banc), (per curiam), and (plurality opinion) — information the citator will show you but that belongs in a parenthetical, not a history phrase. If your school uses the ALWD Guide, the substantive rules are nearly identical; only the rule numbers change.

Free tools exist, and you will need them after graduation if you land somewhere without a full subscription. Google Scholar's "How cited" tab lists citing opinions and lets you search within them, but it offers no editorial treatment codes and no signal. CourtListener, run by the Free Law Project, provides citation-network data and flags some negative treatment. Many state bar associations bundle Fastcase or vLex free with membership, which includes an algorithmic citator.

The honest limitation: none of these reliably tells you that a case was overruled in a later opinion that did not say so plainly. Editorial analysis by human attorney-editors is what you are paying for at Lexis and Westlaw. Use free tools to find citing cases; use a full citator before you file anything.

Bar prep and clinical work are where this bites. Your student passwords typically expire shortly after graduation or bar results, so learn at least one free workflow now.

Relying on the color and never opening the case. A yellow triangle might reflect one district court distinguishing your case on unrelated facts, or it might reflect your circuit gutting the holding you need. You cannot tell from the icon.

Shepardizing once, at the start of the project. Run the citator again the day you file or submit. Courts decide cases while you write.

Forgetting to Shepardize statutes, regulations, and secondary sources. Both major citators cover statutes, and a red flag on a statute typically signals that a provision was held unconstitutional or preempted. Check the effective date and any pending legislation notes.

Ignoring the ethical dimension. Model Rule 3.3(a)(2) requires disclosing directly adverse controlling authority not disclosed by opposing counsel, and Rule 1.1 competence covers knowing whether your authority is good law. Federal Rule of Civil Procedure 11(b)(2) makes your legal contentions a certification. Courts have sanctioned lawyers for citing overruled and fabricated authority; a citator run is the cheapest insurance you will ever buy.