Using the West Digest System - California Western
Using the West Digest System

One of the first things you notice when you look at a typical case opinion in a book (or an opinion printed from Westlaw) is a collection of numbered headnotes at the top.

Click on this picture to see what typical headnotes look like.


What are they?

In any reporter published by Thomson or West, these are West Key Numbers and headnotes. Attorneys and editors at Thomson/West read the case, decided what the important holdings were, and then added these notes to the published version of the case. This links the case to the larger Digest System, which Thomson/West uses to classify every published case in the country by subject.


What is the Digest system?

Over 100 years ago, West Publishing Company divided the entire body of American law into a discrete set of "topics," broke each topic down into hundreds of individual elements, and then assigned each of those elements a "key number." Over the years, some topics have been added, others divided or their elements rearranged, but the basic system hasn't changed (also, the little picture of the key provided a nifty logo for West's books!). Take a look at the front of any digest book to see how the publisher divided up American law into topics. When, in the 1970's, West introduced its "Westlaw" computer databases, it assigned each topic a number as well; these can be difficult to find, but it's worth it to do so, if you want to use Westlaw to find more cases. More about that later.


How can this system help me?

There are two typical ways that the digest system is used:


1) You want to find other cases like a case you have already found.

For example, your firm has a discrimination case in federal court. You want to find cases saying that, even where most sexually harassing behavior in a workplace happened well before the statute of limitations for Title VII actions, if some harassment happened so recently as to be within the statute of limitations period, the plaintiff can sue and recover for all of the harassment, no matter how long ago it happened. This is called the "continuing violation theory." You have found a helpful case from the federal Eighth Circuit Court of Appeals in Minnesota on this issue:

Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997). (Interestingly, this case was the basis of the movie "North Country," with Charlize Theron. Sadly, she will not appear in this guide.)

But you need to find law in the Ninth Circuit, because your case is filed in the federal court for the Southern District of California. How do you get from your Minnesota case to a case that is useful in California (or, hopefully, more than one)?

Look at the headnotes at the beginning of the Jenson case (you can click on the picture at left to see the entire case). Headnotes 19 through 23 address your issue. The key numbers associated with those headnotes are: Civil Rights (key) 342, Civil Rights (key) 373, and Civil Rights (key) 448.1. Make sure that you read the actual text of the opinion (that is, the part the court wrote) after the numbers [19] - [23] in the main part of the case, to make sure that you agree that the headnotes correctly reflect the holding of the court, and that the case really is helpful to you. (And, by the way, if you quote from a case, make sure you quote from the actual opinion, not the headnotes. It is very embarrassing to be discovered quoting language that was not actually written by a judge.)

Now you need to go to the correct digest. West has papered the country with digests, and the cases you want will be "digested" in more than one. There are:

State Digests (for example, West's California Digest, which digests all published federal and state cases which are authority for California courts);

Regional Digests (for example, West's Pacific Digest, which digests all the cases reported in the Pacific Reporter. This reporter includes not just the obvious Pacific states of Alaska, California, Hawai'i, Oregon and Washington, but also, bafflingly, Arizona, Colorado, Idaho, Kansas, Montana, Nevada, New Mexico, Oklahoma, Utah and Wyoming. Perhaps they are preparing for when California falls into the sea.);

West's Federal Practice Digest, which digests all published federal court cases;

The Decennial Digests, which digest every published case in the country, and are issued every ten years; and

The General Digest, which is issued after the most recent decennial digest, to update it. (These are quite a slog to use. Avoid them unless your library has nothing else which covers your jurisdiction.); various specialized digests, such as West's Bankruptcy Digest; and, for something really obscure,
The Century Edition of the American Digest, which digests cases issued between 1658 and 1896.

In this case, because you are searching for cases which interpret a federal law (Title VII) and are binding authority in the federal courts of California,

West's Federal Practice Digest is probably the best digest for you. So, take your key numbers to the most recent edition of West's Federal Practice Digest (which happens to be the 4th). Look for the book(s) containing your topic ("Civil Rights") and your key numbers. Wait! Your key numbers don't seem to exist. Was there some huge typographical error? No, Civil Rights is one of those topics which has exploded with new and interesting developments over the past twenty years, and as a result was completely renumbered in 2003.
Find the "Key Number Translation Table" right after the table of contents for the topic, and convert your old key numbers into new, improved key numbers. Click on the picture at left to see what the first page of this table looks like. Key number 343 becomes 1505, 373 becomes 1530, and 448.1 becomes (yikes!) 1717, 1723-25, 1727-1733, and 1746-1758. Probably best to look in the Civil Rights table of contents for these key numbers, and see which looks the most useful. Here, it's probably Civil Rights (key) 1505(7), which is described as "Time for proceedings; limitations; Continuing violations; serial, ongoing, or related acts."
Now you can look at the case annotations under this key number in the digest, and see cases from throughout the federal court system on the same subject. Click on the picture at left to see the first page of these case annotations. Here, the first case listed under Civil Rights (key) 1505(7) is Nat'l R.R. Passenger Corp. v. Morgan, in which the Supreme Court held: " We conclude that a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his charge within the appropriate time period -- 180 or 300 days -- set forth in 42 U.S.C. sec. 2000e-5(e)(1). A charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period ." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002)(emphasis added). Sounds helpful. But even though this is a Supreme Court case, make sure that you Shepardize or Keycite it to make sure that it is still good law, and applies to your type of case in California. And whatever you find in the book, don't forget to look in the pocket part inside the back cover (or the paperback book following the volume, if it has grown too big to be a pocket part) and the supplement pamphlets at the end of the entire set, for even more recent cases.


2) You have absolutely no cases, and need to find some.

This means that you need to figure out for yourself which key numbers to look under. Let's say you have a case in which one party to a telephone conversation recorded that conversation without telling the other party to the conversation, and then sold the recording to a tabloid newspaper. Both parties were in California. Can the injured party sue for damages?

This time West's California Digest 2d seems like the best place to look. Look in the Descriptive Word Index books to find the correct topic and key number. For example, the index has lots of entries under "Telephones," including "Conversations; Interception. See heading Electronic Surveillance or Interception, generally." A look at that heading, in turn, leads you to "Civil liability, Tel (key) 498; See also heading TORTS, PRIVACY, invasion of." "Tel" means "Telecommunications"; key number 498 provides an interesting collection of cases which may be helpful. A look at the pocket part to the book shows that -- not again! -- the Telecommunications topic has been renumbered, and 498 has now become 1253, 1436, 1441, 1443 and 1451. But the new table of contents for Telecommunications shows that one of these key numbers is for cable television cases, and so is probably not useful here. Key numbers 1436 - 1451, though, provide some more helpful cases. According to the table of contents for the Torts topic, 8.5(5) is the key number for "Invasion of privacy; Publications or communications." In the supplement, this topic, too, has been renumbered, and 8.5(5) has become 350-54.

If this seems a bit indirect, you can also try looking for a discussion of your legal issue in California Jurisprudence or Corpus Juris Secundum; both of these, as Thomson/West publications, include references to the appropriate key numbers for each topic -- and will also probably give you some useful cases.


A few other helpful features of the digest system:

1) The Table of Cases for each digest allows you to find a citation for a case when all you know is the name. For example, if you have heard of the "Jenson Case" in some federal court, and know that the name of the other party has the word "taconite" in it (just what is taconite, anyway?), you can look under "Jenson" in the Table of Cases for the Federal Practice Digest and find the case easily. If you are not sure just where the case took place, you may need to look in the Tables of Cases of several different digests. This is particularly handy if you don't have access to Westlaw or Lexis, or some other online research tool.

2) The Words and Phrases volumes of each digest allow you to find cases interpreting particular terms. For example, you need to quickly find a case to cite for the definition of the obvious word "contract." Honestly, you learned this in your first week of Contracts, didn't you, and yet where is an actual California case that you can cite in court? Look the word up in West's California Digest, and you will find cases which you can cite. But remember: READ THE ACTUAL CASE before you cite it. You and the attorneys at West may not agree, and the opinion may have other details which are bad for your case.


Help! My firm doesn't have any of these books, and I need to find a case in the next hour -- can I use the key numbers on Westlaw?

Yes, you can, and there are a number of different ways to do this.

1) If you already have a case with a useful key number, such as the handy Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997), pull that case up on Westlaw. If you click on the picture at left, you will see a version of the computer display. Scroll down in the document (if you were actually on Westlaw, you would need to scroll down in the left frame), and on the left you will see a link to "West Key Numbers." Click on that, and you will get a list of all key numbers assigned to the case. Or you can just scroll down in the case, and you will see them. Click on the best key number (in this case, Civil Rights (key) 1505(7)), and you will be taken to a screen where you can choose the jurisdiction in which you want to search for this key number. If you choose, say, federal and state cases in California, you will then get a list of all federal and state cases from California which have had this key number assigned to them.

2) If you have a key number, but no case, you can simply do a search of that key number in your chosen jurisdiction. To do this, though, you will need a "topic number," that is, the number assigned to your topic. To find this, you can look at the table of Digest Topics at the front of any digest book. If you don't have any digests on hand, never fear: you can also find these online. Once again, sign onto Westlaw. Click on the yellow "Key Numbers" link at the top of the Westlaw search screen (for a picture of what this looks like, click on the thumbnail at left).
Once this screen opens, click on the link to the "West Key Numbers Digest Outline" in the middle of the page (again, for a picture of this, click on the thumbnail at left).
This takes you to a complete list of Digest topic numbers (to see the list, click on the link at left). There, you can scroll down, and discover that "Civil Rights" has been assigned the topic number 78. Now, go back to the search screen, choose your jurisdiction (federal and state cases in California?), and type "78k1505(7)" into the Search Query box, and Presto! At least 40 cases (when this guide was written) with this key number with some level of authority in California.
3) If you don't even have a key number, try the "Search for Key Numbers" function at the top of the first Key Number screen (see this again by clicking on the picture two paragraphs above). Using this tool, you can type in a search query, such as "employment discrimination and continuing violation," and the service will provide you with a list of topic and key numbers which it thinks are relevant. Before you do this, though, notice that below your little query window there is a line: "Jurisdiction Selected," followed by whatever jurisdiction you happen to have most recently searched on Westlaw Whatever it says, you need to change this by clicking on the blue "Change Jurisdiction" link below it, and then selecting "All Jurisdictions." Otherwise your search will only pull up key numbers which have actually been assigned to cases in that particular jurisdiction, even if those are not the best key numbers for this particular issue. Why did Westlaw include such a fatal weakness in this search tool? Because they didn't ask me how it should be designed, that's why.

4) To make sure that you have found all of the key numbers you should, you should probably also try the "KeySearch" function, which is located on the same page. This is a rather blunt instrument: it allows you to select a general topic, such as "Employment law -- Discrimination -- Sexual Harassment" (click on the thumbnail at left to see the general categories), and then invisibly compiles a list of key numbers which may be relevant to your search. You will then need to choose your "source" of cases -- that is, the jurisdiction you want searched, like state cases in California -- and make your search more specific by, for example, adding the phrase "continuing violation" in the "Add Search terms" box below. Then click on "Search." This will get you a broad selection of cases, but then, too broad is better than too narrow when doing legal research.

5) Or, if you really want a challenge, you can drill down through the various topics and key numbers online to try to find the perfect key number for your issue. This can be extremely time-consuming without a printed index in front of you, but may provide more accurate results than using the "Search for Key Numbers" function. As described in (2), just above, sign onto Westlaw. Click on the "Key Numbers" link at the top of the page. Once this screen opens, click on the link to the "West Key Numbers Digest Outline" in the middle of the page. This takes you to a complete list of key numbers. Scroll down to find the topic you want, and click on the "+" sign next to it to expand it. You will see a list of subtopics. Again, click on the "+" sign next to the most helpful subtopic. Eventually, you will get a list of key numbers. Select those which seem to best represent your search by clicking the check boxes next to them, then click the "Search Selected" button on the bottom left. You will be taken to a screen where you can choose the jurisdiction in which you want to search using these key numbers.



Are there any other digest or headnote systems?

The term "key number" is owned by Thomson/West, but many other publishers have developed their own digesting systems, often for specific subjects, like tax law, or specific sets of books, like the Lawyers' Edition (L. Ed.) Supreme Court reports.

In addition, until 2003 the digest of California's official case reports was McKinney's New California Digest, which used its own numbering and headnote system. Bancroft-Whitney discontinued this digest when the contract for publishing the official reports was awarded to another publisher.

Finally, Lexis-Nexis has developed its own headnote system, and is busily adding headnotes to many of the cases in its online databases. To see a table of these, click on the "Search Advisor" tab on your Lexis screen. And as with Westlaw, if you locate a case online which has a useful Lexis headnote, you can then search for cases with this headnote in other jurisdictions, although the Lexis headnote system is not as detailed as West's.