Can You Use Google Scholar to Shepardize?Posted: April 23, 2012
It’s clear that properly using citators to update research is part of an attorney’s ethical duty to conduct adequate legal research. See, e.g., Idaho State Bar v. Tway, 919 P.2d 323 (Idaho 1996) (failure to properly Shepardize caused counsel to miss statute of limitations resulting in suspension of license); see also Carol M. Bast & Susan W. Harrell, Ethical Obligations: Performing Adequate Legal Research and Writing, 29 Nova L. Rev. 49 (Fall 2004).
Given the importance of properly using citators such as Shepard’s and KeyCite, it comes as no surprise that attorneys are still reticent to use free legal research tools such as Google Scholar to update research.
Exactly how good is Google Scholar at updating research? Is it a plausible alternative to Shepard’s and Keycite?
These questions are part of a larger research project that I’m currently working on. Ultimately, these are questions only the individual attorney can answer after studying the various research tools. However, if my preliminary research is any indication, it seems that Google Scholar is every bit as accurate as commercial citators for updating case law. (For a discussion of this function of Google Scholar, see this previous post.)
Google recently announced that it is now listing cases based upon the extent to which the cited case is discussed, which– as the Law Librarian Blog points out– brings Scholar even closer to KeyCite/Shepard’s functionality. Here’s the text explaining Google’s change, courtesy of the Law Librarian Blog:
Today [March 8], we are changing how we present citations to legal opinions. Now, instead of sorting the citing documents by their prominence, we sort them by the extent of discussion of the cited case. Opinions that discuss the cited case in detail are presented before ones that mention the case briefly. We indicate the extent of discussion visually and indicate opinions that discuss the cited case at length, that discuss it moderately and those that discuss it briefly. Opinions that don’t discuss the cited case are left unmarked.
Given this change, I decided to conduct a simple test of two cases. I selected two state cases, each with a moderate number of citator results (around 40 results). For each case, I compared the KeyCite and Shepard’s results with the Google Scholar “How Cited” Results.
With respect to both cases, every citator result that affected the validity of the cases (negative citing references) appeared in all citators, including Google Scholar, towards the top of the results. All results that discussed the cited cases appeared in all citators, as well. In connection with these two particular cases, the ordering of results were substantially similar in all citators. Importantly, however, Google Scholar does not index most unreported or unpublished cases. So, if you want an accurate depiction of how many times a case is cited, there is no substitute for West or Lexis. But with respect to precedent that might actually affect a case’s viability, I found no substantive differences between the citators.
Of course, there are differences in the way Google Scholar and Lexis/Westlaw present the results. Google doesn’t provide any treatment signals (e.g., red flags, stars, etc.). Nonetheless, one might argue that this might cause attorneys to study the precedent more carefully, rather than rely on the West/Lexis characterization of precedent. I also found the case excerpts in Google Scholar’s How Cited results much more helpful than the excerpts provided by West and Lexis.
Disclaimer: Please keep in mind that this is is merely anecdotal evidence, not empirical research, and this post should not be considered legal advice.