Tobe Liebert is the Director of Public Services for the Jamail Center for Legal Research, Tarlton Law Library at the University of Texas School of Law in Austin, Texas.
(Archived July 1, 1999)
Anyone reading this article will likely have seen plenty of advertising about KeyCite and New Shepard's. While both services have been waging battle since KeyCite's debut in the fall of 1997, the struggle has become noticeably more fierce in the past couple of months. Two events are behind this latest blitz. First, Shepard's has released New Shepard's, an enhanced version of its online service. Second, Shepard's will no longer be available on WESTLAW, as of July 2, 1999. Because many users may soon be forced to choose between these products, it is important to set up a framework for comparison.
II. The Latest Developments
New Shepard's, which debuted at the end of March, is a major enhancement to the online Shepard's product. The two most significant improvements are:
The search power of LEXIS has been integrated into New Shepard's. Specifically, the LEXIS "focus" feature, which allows keyword searching in a set of documents, has been incorporated into New Shepard's. Once you have Shepardized a case, you can then run a "focus" search in the full-text of those citing references. This is a great tool if a case has been cited many times, generating an unwieldy list of citations. This linking of citator service with the power of the underlying research service is what makes the latest generation of online citators so exciting.
New Shepard's now takes advantage of the huge LEXIS database of legal materials. Therefore, when using New Shepard's, a researcher can retrieve citations to unpublished decisions and cites to far more law review articles and other secondary resources than previously available. This helps Shepard's answer KeyCite's advertising, which has emphasized the fact that a KeyCite search typically retrieved significantly more citing references than a Shepard's search.
The second event on the horizon is the removal of Shepard's from WESTLAW on July 2. Naturally, WESTLAW wants to convince the world that KeyCite meets all the standards of reliability that we associate with Shepard's. Thus, it is promoting KeyCite heavily, emphasizing how rapidly information is added to KeyCite. KeyCite also has ambitious plans to add new features and coverage, including:
KeyCite coverage of statutes, regulations and older caselaw. By the end of the year, KeyCite will cover the United States Code, statutes of all fifty states, and the Code of Federal Regulations. There are plans to gradually extend coverage to the pre-National Reporter System state caselaw as well.
More secondary source citations. American Jurisprudence 2nd, Wright & Miller's Federal Practice & Procedure, and Witkin's California Treatises are a few of the many sources that are being incorporated into KeyCite. In other words, when you KeyCite a case, your search will locate citations to the case by a wide variety of secondary sources.
Even more search features. According to KeyCite advertising, there will be further enhancements to the "limits" features. A KeyCite developer also indicated that WESTLAW's "locate" search feature will eventually be incorporated into KeyCite, which will enable KeyCite to match the "focus" feature built into New Shepard's.
For more information about the latest news and developments, both services maintain websites:
Will researchers migrate over to LEXIS simply because of the perceived necessity of "Shepardizing" caselaw? A recent posting on LAW-LIB suggests that most libraries have both LEXIS and WESTLAW available to their users, and so few people will be forced into using just one service.
III. What We Really Want to Know About
So, how do we compare New Shepard's and KeyCite? Although they are distinct products, it is inevitable that they be compared head-to-head. There are a number of different bases on which to analyze these products, with the importance of each basis varying with the type of research you are performing. I will look at five categories: (1) types of citations you can research; (2) depth and range of citing references; (3) research features; (4) cost; and (5) timeliness and accuracy.
(1) Types of Citations You Can Research
What type of primary resource can you research (we should resist the urge to use the word "Shepardize") and what years of coverage are offered for each resource? This is the easiest category to measure, but probably the least important basis of comparison for most occasions. I say this because most people still use citators to check to see if a case is still "good law," and it is probably a safe assumption that researchers infrequently need to check the validity of cases issued before the beginning of West's National Reporter system. In other words, it is not everyday that we use a citator for statutes, regulations or very old caselaw.
Nonetheless, Shepard's has a distinct advantage in this category. The online version of New Shepard's offers coverage of statutes, regulations, pre-NRS caselaw, agency decisions and more. It must be stressed that KeyCite plans on catching up, however, by adding coverage for statutes, regulations and older caselaw. It is interesting to note that during a talk last December in Austin, a WESTLAW representative stated that research had shown that few people were interested in having KeyCite's coverage extended to these other areas, so there were no immediate plans to add such coverage. KeyCite promotions this Spring, however, indicate that WESTLAW's plans have changed abruptly. WESTLAW is either listening carefully to customer suggestions or to Shepard's advertising.
(2) Depth and Range of Citing References
By this measure we compare the types of citing references that are tracked by each product. In other words, do we get citing references to not just published cases, but also to unpublished cases, law review articles, and treatises that may have cited our case?
KeyCite and New Shepard's will give references to unpublished decisions, although New Shepard's has not added as many citations as KeyCite. Both services give citations to any law review or periodical articles that appear full-text within their online service. For example, New Shepard's expands upon the former version of Shepard's by executing a "LexCite" search when you check a citation. Thus, when you choose Shepard's "for research," your case cite is run through the following files in the Lawrev library: Allrev, Barjnl and Wgltxj. A much wider range of citing references will now be returned.
As mentioned above, KeyCite has announced plans to add citing references from numerous secondary sources published by the West Group. Thus, both New Shepard's and KeyCite give an impressive array of citing references, with more on the way.
This basis of comparison has been the subject of a thorough study published by Yale Law Librarian, Fred Shapiro: KeyCite and Shepard's - Coverage and Currency of Citations to Recent Cases: A Comparative Study, Legal Information Alert (April 1998). The main focus of the Shapiro study was a comparison of the number of citing references found when the same case was run through both Shepard's and KeyCite. KeyCite did return significantly more citing references, primarily because of citations to unpublished decisions and law review articles. As this study was based on the previous online version of Shepard's, however, it is now outdated because of the enhancements in coverage embodied in New Shepard's. With the expanded coverage of New Shepard's, I suspect that the dramatic edge enjoyed by KeyCite has been narrowed considerably or nullified.
(3) Research Features
By features, I mean methods of displaying, refining and expanding search results. This topic is something of a "moving target" because of the ongoing development of these products, but some conclusions can be drawn:
Display. Both services allow the user considerable flexibility in the display of the results. KeyCite has the options of "Show Full History," "Negative History Only," "Omit Minor History," or "Citations to the Case." Similarly, on New Shepard's, you choose initially between "Shepard's for validation" and "Shepard's for research." You can further manipulate the display by choose "all negative," "all positive," "any analysis," or "unrestricted."
These options exist because of a distinction between the two reasons we use citators: (1) to see if our case is still "good law," which requires information on negative subsequent treatment of the case, and (2) to find similar and supporting authority to bolster our argument. Both KeyCite and New Shepard's give very useful ways of displaying just the results you want.
Refining results. It is important to have methods of culling through search results to pinpoint cases of particular interest to your individual research. A well-known drawback to the traditional print version of Shepard's is running into a large mass of undifferentiated cases. The online citators make it far easier to sift through your results.
Both services have built in a number of ways to make your research more precise. You can limit your citing references by jurisdiction, date, majority decision, and more. There are significant differences, however, which may affect your decision on which service to use:
The availability of the "focus" search feature in New Shepard's is very valuable, especially if you have a unique fact pattern or an emerging area of law not yet addressed in the West Digest system. WESTLAW would be wise to implement the "locate" search feature into KeyCite, which seems a natural and logical extension of the capabilities of an online citator. While the availability of the West's headnote system in KeyCite does serve the same purpose to an extent, it is not the equivalent of having the keyword search option.
The use of West's headnote system is a powerful way of limiting results of your research to cases on a particular point. KeyCite has the obvious advantage here as it permits you to actually view the text of the headnotes, while Shepard's does not have this information.
Expanding. By this, I mean methods of locating other resources which may provide additional supporting authority for your position or suggest new theories to pursue. While this was always possible with the print version of Shepard's, the online citators make this much more fruitful. Using a citator in this way is a bit like Bob Berring's "one good case" method of pursuing legal research. That is, based upon a known, relevant case, you expand your research by using other resources linked to your case. The new generation of citators are perfect for this approach.
Both New Shepard's and KeyCite give you ways to easily find other relevant authority. Besides providing cites to cases that have cited your case, you can receive citations to law review articles and other secondary sources that have mentioned your case. Following this approach, you are expanding your research by relying on other authority that has specifically cited to your case.
But, what if there are other good cases out there, but they have not mentioned your case (and so would not have been detected by the citator?). This is, of course, the traditional role filled by the West Digest System, which has been nicely incorporated into KeyCite. If you depend upon the digest, then KeyCite may well be your preferred citator. KeyCite makes it simple to jump into the digest system and locate other cases classified under the same topic and headnote as your case.
LEXIS has recognized this advantage and has announced plans to create a classification system of its own, which no doubt will be incorporated into New Shepard's. Details are sketchy at this moment, but this bears watching.
KeyCite and New Shepard's are competing on many levels, but cost is not currently one of them. Both charge $3.75 per search.
(5) Timeliness and Accuracy
This is arguably the most important basis of comparison. For most practitioners, the real test of a citator is currency and accuracy of information. Researchers want to know: (1) how quickly will a case be added to the service; (2) how quickly will its treatment of cited cases be analyzed and added to the service; and (3) how accurate is its description of the subsequent treatment? This is also the most difficult quality of a citator to measure, as a large sample must be followed and analyzed over time to give an accurate picture.
To date, no independent study has been published that concentrates on this topic. Certainly, at any KeyCite or New Shepard's product demonstration, the vendor can always show you inaccuracies in the competitor's results. Of course, such demonstrations must be taken with a grain of salt. The study by Fred Shapiro, mentioned above, did draw the conclusion that KeyCite had a currency edge, but only one paragraph of his article addressed this issue. Thus, a study is needed that concentrates strictly on the issue of currency and accuracy of the services. Fortunately, it appears that there are librarians working along these lines. Bill Taylor, a librarian at the Georgetown University Law Center, has announced his intentions to conduct such a study.
Some things that would be good to address in any study:
how quickly a new case is represented in KeyCite or New Shepard's;
how quickly the databases are updated to reflect what cases and other authority are cited by the new case;
how the services differ in the analysis and treatment of the cited references;
do the services later change the information about the cited references, presumably to more accurately reflect analysis and treatment information?
I suspect that both services will be found to be reasonably quick, reliable and accurate. After all, Shepard's has proven reliability and KeyCite has enjoyed wide acceptance since its introduction. Both products are excellent, especially at informing you if a case is still "good law." After all, it is not terribly difficult to determine if a case has been reversed or overruled by a later case. The more subtle subsequent treatment of cases is more difficult to assess and comparisons on this basis would be very interesting.
Note: For a discussion of some considerations of how we should now teach the use of citators, see Tobe Liebert, "A New Generation of Citators: KeyCite v. New Shepard's," Texas Lawyer, May 10, 1999, p.29.