As judges come and go, courts periodically “change their minds” about what the law is. This happens for lots of reasons, but a full discussion of that will have to wait for another day. What I want to talk about here is this: When courts do change their minds about what the law is, how do lawyers keep up? If I’m writing a motion, appeal, writ or just generally arguing about the law in court, how do I know that the law I’m relying on, or “citing,” as legal precedent is accurate?

This is particularly important in today’s world, where courts increasingly tend to follow their own personal tastes, or even whimsy, instead of relying on the rule of law, and where literally thousands of sometimes contradictory cases are available to justify their doing this. If an attorney has any hope of properly representing his client in the face of judicial abdication of the law, he practically has to be able to rub the courts’ collective noses in the fact of what the law actually is.

And to do that, you have to have a way of knowing what is still good law and what is not.

In 1873, Frank Shepard began publishing lists of cases so that attorneys could quickly see when, or whether, a particular case had been overturned, reaffirmed, questioned or cited by cases that came afterward. And for more than a century, Shepard’s Citations was the reigning citator to which legal researchers turned to know if a particular case actually represented the law at a particular point in time.

In 1996, however, Lexis purchased Shepard’s and, if you ask me, it’s been downhill ever since. I’ve lost count of the number of times I’ve called Lexis to ask one of their staff lawyers why a particular case was listed as being overruled, superseded, or had otherwise been consigned to desuetude because of a subsequent case. At least a couple of times, the cases that supposedly negated the usefulness of an older case never even mentioned the older case, nor the rule for which the older case stood. In that situation, it’s impossible to see how the newer case showed that the older case had been overruled or superseded.

Today, it happened again, for the second time in a week. I was working on an appeal. The issue I’m researching concerns the “Three Strikes” law and whether or not my client was properly sentenced to double the normal term for possessing three-hundredths of a gram (0.03) of methamphetamine. Well, more accurately, the question is whether, under the circumstances, the trial court should have granted the Romero motion to “strike a strike,” so that the sentence would not be increased. ^[1]See People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789]. In order to research the question, I utilized Lexis, to which I am still shackled by contract through approximately November 2008.

If you don’t have access to Lexis, some (minor) points in this post may not mean much. For example, when I talk about clicking certain links, you obviously can’t do that for yourself if you don’t have access to Lexis. So, on those minor issues, you’ll just have to take my word for it. On the plus side, I’m not part of Lexis’ shepardization service, so my word might actually mean something.

Given the issue I needed to research for my client’s appeal, I was curious when Shepard’s provided the information that Romero had been superseded by statute as stated in People v. McCoy (Cal.App.2d Dist. 2007) 156 Cal. App. 4th 1246, 1255 [68 Cal.Rptr.3d 134]. My curiosity turned to dismay, though, when I realized that, once again, Shepard’s appeared to be wrong. I knew that now I was going to have to carefully read McCoy for myself, a waste of time when the case actually has nothing to do with the issue that concerns you.

Sure enough, McCoy mentions Romero only for the purpose of pointing out that one of the two issues in a prior case, People v. Chavez (2007) 149 Cal. App. 4th 1340 [57 Cal. Rptr. 3d 830], involved the question of whether a trial court properly denied a motion to strike under Romero. The McCoy opinion notes that the Supreme Court, which took review of the Chavez case, requested briefing on the first issue, but (therefore) not on the Romero issue.

What was considered in McCoy was how certain Government Codes impacted the assessment of the state court construction penalty portion of the appellant’s fine. Other than mentioning that the Romero question was not briefed in Chavez, the Romero question never again gets mentioned. Thus, contrary to what Shepard’s shows, McCoy does not show Romero was superseded by statute. It shows that Chavez was superseded by statute.

It looks like what happened here is someone incorrectly tagged the cases. If you click the link for Chavez given in McCoy, it brings up Romero, not Chavez. There are also a couple of places where “hyperlink text” (i.e., URLs) is showing up in the actual text. My guess is that somehow the tags were not properly closed. The tags are possibly used by Lexis to automate Shepard’s. I’m not sure about that, but, as I said, there does seem to be a relationship between Chavez being the case that was actually superseded by statute as stated in McCoy and the fact that Romero comes up instead of Chavez if you click the Chavez link.

I’ve given up trying to contact Lexis each time I find an error in Shepard’s. Most of the time, they just tell me they’ll look into it. I never hear anything else and if I go back to check, I find the error is uncorrected.

The downside of this is that if you can’t reasonably rely on Shepard’s and you care about a rule that Shepard’s indicates has been overruled, superseded, or is otherwise no longer good law, you’ll have to read the cases yourself. Shepard’s may still be good as a guide. If Shepard’s says a case is “bad,” there’s a good chance it might be. But if the rule is important, you’ll have to read the case to see if what Shepard’s says is true really is.

And, incidentally, this works the other way as well. People v. Chavez (May 21, 2007) 2007 Cal. App. LEXIS 784 shepardizes as having no subsequent appellate history. Normally, if I wanted to use that case, this would be a good thing. However, it’s actually not true. The May 21, 2007 version, noted by Lexis as “2007 Cal.App. LEXIS 784” is a modification of the April opinion which is no longer citable because the California Supreme Court granted review on August 15, 2007. ^[2]See People v. Chavez (Jesus R.) (2007) 166 P.3d 1 [65 Cal.Rptr.3d 142]. So in at least this one case, a positive result from Shepard’s — or at least the lack of negative treatment — does not mean the case is good. (Of course, it may be the Shepard’s just doesn’t work well for modifications of opinions. Maybe “regular” opinions that shepardize as good are always okay. I don’t have enough information to decide that, though.)

The bottom line is this:

[T]he reliability and validity of Shepard’s is unknown, and we should therefore be appropriately skeptical of it. ^[3]Spriggs and Hansford, “Measuring Legal Change” (2000) Political Research Quarterly, Vol. 53, No. 2, 327-341.

If you have a case, or rule, that’s important to you and Shepard’s makes you question the case, or rule, you might do better to question Shepard’s instead.