Three citators: a brief test

From results of a search in Westlaw’s NJ-CS for the phrase “we disapprove,” I compiled a list of 30 New Jersey cases that had each been at least partly disapproved by a later case. I then checked those 30 cases in Shepard’s (on Lexis), KeyCite (on Westlaw), and BCite (on Bloomberg Law).

Shepard’s flagged the negative treatment for 29 out of the 30 cases (calling it “overruled” except for 2 cases that were marked as “criticized”). The one other case was Cureton v. Eley, 294 N.J.Super.321 (Law Div. 1996), which Shepard’s marked just as “cited by” the later case Jimenez v. Baglieri, 295 N.J.Super. 162 (App. Div. 1996) — though Shepard’s did note that Cureton was “among conflicting authorities noted in” Jacques v. Kinsey, 347 N.J. Super. 112 (Law Div.2001).

KeyCite red-flagged 27 out of the 30 cases — 26 of them as “disapproved,” one as “disagreed with” — and yellow-flagged two cases as “distinguished”. For the case D.Y.F.S. v. R.G., 397 N.J.Super. 439 (App.Div.2008), KeyCite treated it as merely “cited” by the later case D.Y.F.S. v. G.M., 198 N.J. 382, 405 (2008), but did red-flag it because the overruling by the G.M. case was recognized by D.Y.F.S. v. N.S., 412 N.J.Super. 593 (App.Div. 2010).

BCite gave a red negative symbol on only 6 out of the 30 cases, a yellow caution symbol on 3 other cases, and a blue distinguished symbol on 3 others. On 18 out of the 30 cases, BCite indicated positive treatment (“discussed”) by the specific later case, and BCite’s “composite analysis” was “positive” for 16 of the

30 cases. On the case D.Y.F.S. v. R.G. 397 N.J. Super. 439, BCite did analyze it as negative because of D.Y.F.S. v. N.S. which recognized the prior overruling, but BCite did not include the overruling case D.Y.F.S. v. G.M. at all as a citing case. On State v. Williams, 381 N.J.Super. 572 (App.Div. 2005), although BCite’s composite analysis was negative, its specific analysis of each of the 3 citing cases was positive.

UPDATE: On Aug.23,2011, I rechecked the same cases on BCite. Of the 18 cases for which the specific analyses had been “positive,” 5 had been changed to “negative” (“overruled in part”). On two others, although the specific analyses remained “positive,” the composite analysis had changed to negative because of a later case noting “prior overruling.” And of the 3 cases for which the specific analysis had been “caution” (“criticized”) 2 had changed to “negative” (“overruled in part”). The third case that been “caution”(“criticized”) (State v. Ginnetti, 232 N.J. Super.378, as cited by State v. Bernhardt, 245 N.J.Super. 210) was now “positive” (“discussed, quoted”).

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