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Computer Counselor - September 1999

Users Win in the Battle between KeyCite and New Shepard'sShepardizing a case has never been easier, thanks to recent advances in online services

By Daryl Teshima
Daryl Teshima is a practice systems attorney at Gibson, Dunn & Crutcher. He can be reached at 

Before computers, cite checking was synonymous with Shepard's Citation Service. To determine if a case is still good law, legal researchers had to "shepardize" the authority by locating the correct red Shepard's volume, deciphering two-character codes that described the case's subsequent treatment, and updating the results after examining assorted pocket supplements. All that work only produced a list of citations, which then needed to be located and read. This onerous but critical task is ideally suited to online information systems, which can generate an up-to-the-minute list with a single mouse click. Even better, each online citation can be hyperlinked to the complete text of the citing authority, which makes evaluating the re-sults of a search much easier. 

The conven-ience of online citators is one of the primary advantages of using Lexis or Westlaw. Certainly Lexis realized this fact when its parent company, Reed-Elsevier, bought Shepard's last year. West, recognizing that Shepard's was now controlled by its chief competitor, developed and released KeyCite-an online-only citator available only on Westlaw. 

The creation of KeyCite made the online citator arena the flash point of the increasingly fierce competition between Westlaw and Lexis. Earlier this summer, Lexis unveiled New Shepard's, an enhanced version designed to close the feature gap with Key-Cite. In addition, Lexis an-nounced that, beginning July 1999, Shepard's will no longer be licensed to Westlaw. In response, West introduced another version of KeyCite as well as a new, more powerful (and more resource-intensive) Web onramp called New Westlaw.com. 

These maneuvers mean that legal researchers are now faced with a difficult choice between online citators. I probed the strengths and weaknesses of the two products by checking various citations on a Pentium II-based computer with 64 MB of RAM. The method used to connect to each service was the Internet, using either an ISDN or T-1 connection. Additionally, a few se-lected cases were cite-checked by using the traditional, DOS-based on-ramps (Lexis-Nexis Re-search Software 4.06 and Westmate 5.5 ) as well as New Westlaw.com. 

Easy to Use 

Using either citator requires little instruction or training and offers significant advantages over the printed Shepard's. For example, simply viewing a case online gives legal researchers an instant (and free) visual cue regarding the case's current status. In Westlaw.com, KeyCite hoists a series of colored flags that denote the case history. (Red or yellow flags mean that the cite may have a checkered history.) Similarly, on the Internet/Windows-based version of Lexis, Shepard's uses a traffic signal as a visual metaphor. (In DOS-based onramps, the visual cue is replaced by text.) 

To check a case and obtain the full, detailed analysis, users simply type in the citation or click the appropriate KeyCite or Shepard's symbol. Almost every authority listed is connected to the full text of the cited authority, which makes verifying and checking the results quick and easy. 

Where KeyCite and Shepard's differ is in presentation, especially when using these citators via the Internet. Shepard's presents results in a single list similar to its DOS-based versions. Accordingly, researchers can only view one item at a time. For example, Shepard's will initially display a results list with all cited authority hyperlinked. If the researcher views a particular authority, the citation results list disappears and is replaced by the cited authority. In order to redisplay the results list, users will have to click on the browser's Back button. 

KeyCite takes advantage of frames, which are heavily used throughout Westlaw.com. The left side of the screen displays a frame that contains the results list, while the larger frame to the right showcases the highlighted cited authority. This method makes it much easier to skim results and avoids the constant switching required by Shepard's. New Westlaw.com takes even greater advantage of frames by allowing researchers to instantly change what is displayed in the small left frame, thus jumping back and forth between a KeyCite results list and West Key Numbers for the citation with clicks of a tab key. 

Westlaw.com's frame-based approach does have one disadvantage. In KeyCite, history and citations results are viewed in separate windows that are interchanged by clicking the appropriate link. While this separate presentation does not present problems when viewing results onscreen, it does have an impact when printing results. To print both, the history and citation results must be printed separately. Shepard's, on the other hand, has an option to print both with just one procedure. (West appears to have fixed this problem in New Westlaw.com by adding an option to print the entire KeyCite results list.) 

Another significant difference is how the results are analyzed. Shepard's marks each citation with an editorial analysis that is assigned by legal editors who have reviewed the case. In the printed version, this analysis is a cryptic code. The online version translates this code into plain English. This familiar method of organization allows researchers to see citations that received a particular treatment (such as "reversed by" or "distinguished by"), quickly get to the core citations, and eliminate string citations from the results list. 

West editors also analyze citations for KeyCite and incorporate them into direct and indirect history results. However, KeyCite determines depth of treatment by assigning stars to each case. The greatest number of stars that a case can have is four, which signals an extended discussion of the cited case, usually more than a printed page. At the other end of the scale, a single star means that the citing case contains only a brief reference, typically a string citation. 

The star ranking employed by KeyCite is certainly an intuitive and innovative indicator about the impact of the citing case. Un-for-tunately, KeyCite uses star depth as the de-fault method to organize results, meaning that citations are grouped according to how many stars the case receives. This makes searching for the validity of a case in a particular jurisdiction more cumbersome, as it requires sifting through each star grouping. KeyCite does allow researchers to customize the results list to show just one jurisdiction, but to do so requires delving into a limits window. If this change is made, however, the results for the particular jurisdiction are still sorted by star treatment. Shepard's, on the other hand, organizes results first by jurisdiction and then by date-making it easier to determine, for instance, how the Ninth Circuit views the particular case. 

Searching Results 

One limitation of online citators is that researchers can only see information displayed onscreen. If the cite contains hundreds of citations, it can be cumbersome to sort through these results while online. Efficiency can also be eroded by outside factors, such as the user's computer speed, connection speed, and monitor size. Even Westlaw.com's innovative use of frames cannot overcome this hurdle entirely. 

For this reason, a critical feature of any online citator is its ability to narrow down the citation results list. KeyCite and Shepard's utilize different methods. Shepard's incorporates Lexis's powerful Focus feature, which allows researchers (at no additional cost) to conduct additional searches on a particular results set. For example, if a Shepard's search reveals 678 citing references, the researcher can refine this list by conducting an additional search of these 678 documents. This feature is a wonderful and cost-effective way to find a needle in the digital haystack. 

At present, there is no similar feature available in KeyCite, although company officials have indicated that West's corresponding Locate feature will be incorporated shortly. What KeyCite does offer is the ability to narrow a results list using West's digest topics and key numbers. In fact, the description of each West key number can be viewed when limiting a results list, making it easy to pinpoint the cases that deal with the particular issue that is being researched. 

A similar function is also offered in Shepard's, although the full text of each key number is not available. Rather, a researcher must know which key number to select when limiting a particular search. Unless the researcher has the West Digest handy, the implementation of this feature is difficult. 

Another innovative feature offered only in KeyCite is the Table of Authorities, which takes every authority discussed in the cited case and presents it in a table that contains a visual cue (red, yellow, or blue flag) for each reference. This analysis allows researches to quickly examine the underlying authority that the particular case is based on and better assess the overall stability of the case. 

Both Shine in the Key Area 

While there are several differences in presentation style, both citators now excel in the most important area-determining whether a cited authority is still good law. Previous weaknesses in each citator have been eliminated, and now both generate current and comprehensive reports. 

Shepard's previously had the edge in scope-it covered statutes and pre-National Reporter system cases. The new version of KeyCite now covers these areas. Conversely, in head-to-head comparison, KeyCite generated more cited references than the prior online version of Shepard's. This difference exists because KeyCite analyzed over 600 law reviews, unpublished decisions, and scores of secondary sources, while Shepard's did not. Today, Shepard's covers over 400 law reviews, unpublished decisions, and any treatise found on Lexis, substantially shrinking that differential. 

Another important area of similarity is price. Both KeyCite and Shepard's charge $3.75 for each search. Although there may be additional charges for viewing cited cases and printing or sending an e-mail text of results, cost is not a determining factor-especially when compared to the billable hour time it took to cite check cases the old-fashioned way. 

Because of the substantive similarities, it is hard for researchers to make a bad choice. Which one is right for a particular firm probably depends more on personal preferences and which online giant offers the better deal. In any event, the consequence of this war of citators has resulted in substantial improvement to both products, making legal researchers the ultimate victor.

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