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The Seminar on Research and Application of Legal Material. Shepard’s Legal Information Analysis. Mar. 2005, Taiwan By Jensen Wang. For educational purposes only
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The Seminar on Research and Application of Legal Material Shepard’s Legal Information Analysis Mar. 2005, Taiwan By Jensen Wang For educational purposes only All products and brand names mentioned are trademarks or registered trademarks of their respective owners. Looney Tunes characters and all related slogans and indica are trademarks of Warner Bros. Inc. The use of such material falls under Fair use provisions.
AGENDA OF PRESENTATION 1. Introduction on Shepardization 2. Shepard’s on Caselaw 3. Case Analysis for Commonwealth Materials 4. Bill Tracking & RegAlert 5. Questions & Answers
Legal Research Why we need Shepard’s / Shepardization? 1. Counsel’s Duty “Moreover, the failure to cite, if not Huang, at least Pisano, decided almost a year earlier, is a violation of counsel's "duty to disclose directly adverse authority." Counsel claim to have been "unaware of [those cases] until the oral argument on the motion." For counsel to have been unaware of those cases means that they did not Shepardize their principal authority … Thus their failure to cite adverse authority is not excusable.” By Schwarzer J. in Golden Eagle Distributing Corp. v. Burroughs Corp., 40 Fed. R. Serv. 2d (Callaghan) 346
Legal Research Why we need Shepard’s / Shepardization? 2. Inexcusable failure / Professional negligence “It is really inexcusable for any lawyer to fail, as a matter of routine, toShepardize all cited cases (a process that has been made much simpler today than it was in the past, given the facility for doing so…). Shepardization would of course have revealed that the "precedent" no longer qualified as such”. By Milton Shadur J. in Gosnell v. Rentokil, Inc., 175 F.R.D. 508
Legal Research Why we need Shepard’s / Shepardization? 3. Dismissal of Application “Petitioner's lead counsel admits that neither he nor any of the lawyers (including local Georgia counsel) or paralegals assisting him made any effort prior to the filing of the second petition to research the decided cases upon which he now relies…By simply "Shepardizing" the Fifth Circuit's prior decision in their own case, counsel would have been alerted to the decision in Westbrook, which in turn relies upon Spivey and controls Finney. Similarly, the use of basic research techniques such as …Lexis would have identified the possible relevance of these cases prior to the filing of petitioner's second petition…Accordingly, the court hereby determines that petitioner's failure to raise this claim in his second habeas petition was inexcusable”. By Owens, District Judge in Stephens v. Kemp, 602 F. Supp. 960
Shepard’s • Shepardization involves the following steps: • Identification of Leading Authorities • Searching of Adverse Authorities • Determination of Applicability • Eclipse on Future Development
Identification of Leading Authorities Example: whether the employer can rely on the arbitration agreement to stay the proceedings in courts? (Signed a Release or Waiver?) Employment agreement Employer Employee Arbitration Clause Right-to-sue Letter Federal Arbitration Act Disability Discrimination Arbitration Tribunal Equal Employment Opportunity Commission
Identification of Leading Authorities Federal Arbitration Act and stay w/s proceeding and refer! w/s arbitration and Discrimination
Identification of Leading Authorities - Warning: Negative treatment is indicated - Caution: Possible negative treatment - Positive treatment is indicated - Citing Refs. With Analysis Available - Citation information available
Identification of Leading Authorities Warning: Negative treatment is indicated Caution: Possible negative treatment Positive treatment is indicated Citing Refs. With Analysis Available Citation information available Positive Treatment Supreme Court Supreme Court Caution Distinguished Applied Overruled Affirmed Citation Warning Court of Appeal Court of Appeal Court of Appeal Cited 2001 2003 2002
Identification of Leading Authorities An agreement between an employer and an employee to arbitrate employment-related disputes does not bar the EEOC from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an ADA enforcement action.
Shepard’s Shepard Legend shows - Caution: Possible negative treatment Must Retrieve Shepard’s Report to Check Adverse Authorities
Shepard’s Retrieval of Shepard’s Report
Shepard’s • “In the time since Waffle House was decided, the Supreme Court's reasoning has not been explicitly extended to apply to situations where an employee has signed a waiver or release, rather than an arbitration agreement. Indeed, the Supreme Court suggested that whether such a extension was in order was an "open question“…The court considers the extension of Waffle House's reasoning in relationship to arbitration agreements, to waivers and releases, quite reasonable”. • By DOMINIC J. SQUATRITO in Senich v. American-Republican, Inc., 215 F.R.D. 40
Shepard’s “However, the issue here is not whether non-signatories to the agreement can be compelled to arbitrate; rather, it is whether these non-signatories may compel plaintiff, admittedly a party to the contract, to arbitrate. See Choctaw, 271 F.3d at 406(noting this distinction). EEOC v. Waffle House does not alter this analysis, and the claims against the individual defendants are subject to the arbitration agreement”. Gambardella v. Pentec, Inc., 218 F. Supp. 2d 237
Shepard’s Discrimination Claims can be maintained Signature of Release & Waiver has no effect on the EEOC suit The claims against the individual defendants are still subject to the arbitration agreement
Shepard’s Shepard’s Report gives the full picture of the authorities and the related decisions
Applicability 534 U.S. 279
Applicability California State Courts
Applicability After reading the state courts treatment on the case, it can be determined whether the case is fully applicable to a particular jurisdiction.
Verification of Commonwealth Information stay w/s proceeding and refer! w/s arbitration and waive
