When you agree to represent a new client, prudent attorneys understand the importance of being as thorough as possible in gathering information from the client. There are ample reasons for performing due diligence beyond ensuring that no conflicts of interest exist: the more information that attorneys can extract from their clients, the lower the chances that a surprise will complicate a case’s trajectory, or worse. A good attorney will make a client fully aware of this reality, encouraging him or her to disclose all relevant information, even if the client is hesitant to share it.
Unfortunately, this strategy isn’t foolproof. Clients often simply may not understand what information is relevant to a case, or they may not even be aware that certain information even exists. Sometimes, a client intentionally omits important facts, believing that the information isn’t significant enough to risk the negative consequences of disclosure.
Consequently, attorneys would be wise to conduct their own independent investigation into a client’s background – perhaps even prior to accepting the individual as a client at all.
Criminal history: relevant for more than criminal cases
Most criminal defense attorneys are very accustomed to researching a client’s criminal history due to heavy influence that such factors exert on the outcome of the case. However, for attorneys in other areas of law, investigating criminal activity may not even be a consideration, believing that criminal records have little bearing on the outcome of their civil legal matters.
Nevertheless, attorneys believe this at their own peril. While a client’s criminal records may have little impact on some civil cases, there are very few case categories where it does not have any relevance. Even in those cases in which criminal records have minimal influence, it is extremely difficult to foresee the impact in the early stages of a case, especially if the criminal history is unknown.
In non-criminal cases of every type, one party often attempts to use the other party’s criminal activity as an indicator of poor personal character, even where such matters may bear little importance to the subject of the case itself. Family law cases are especially notorious for such strategies, where the temperament of the parties themselves is often at the heart of the dispute.
Even though a client’s dredged up criminal past may not be directly relevant to the case’s subject matter, opposing attorneys will often leverage those records to appeal to the judge’s emotions – a strategy that is effective with surprising frequency.
Of course, crimes of dishonesty, such as fraud and embezzlement be used to impeach a client’s character for truthfulness, potentially nullifying the effectiveness of your client’s testimony.
As such, attorneys should build a case strategy that accounts for a client’s criminal history being used against him, even when that history is irrelevant to the case at hand. Additionally, discussing these matters with your client is an excellent method of obtaining even more background facts about the case that the client may have been hesitant to reveal, or may not have even believed were relevant.
In short, attorneys should assume that a client’s criminal records will surface during the course of the legal matter, and should prepare accordingly by researching a potential client’s criminal activity prior to formulating a case strategy or even taking on the client at all.
Civil actions: involvement says a lot about a client
Attorneys may wade through litigation so often that they sometimes forget how much information can be found in civil court filings. For better or worse, these filings are largely available to the public, meaning that an opposing party can easily obtain them in most circumstances and potentially discover something relevant.
Such a finding by the opposition would not necessarily be as harmless as it may first appear. An opposing party may find something in the filings of a previous case to attack the character or credibility of the client in the present case. Potentially unfavorable information that an attorney would prefer to downplay or otherwise withhold as much as possible could be exposed in broad daylight in the filings of another civil case. In short, the potential information from other civil cases interferes with an attorney’s ability to steer the narrative of her argument.
Aside from the content of the filings, the mere existence of other civil suits creates potential complications for a litigation strategy. First, a client’s status as a defendant in a civil action typically indicates that he or she is, at a minimum, accused of doing something wrong.
Second, the complications extend beyond a client’s role as a civil defendant. A potential client appearing as the plaintiff may portray the client as appearing overly litigious, especially if he or she is responsible for initiating multiple lawsuits, or if such prior lawsuits have particularly shaky legal foundations.
Finally, knowledge of the potential client’s involvement in other lawsuits may affect more than the client matter itself: it could protect a firm’s bottom line. If the client has ever sued another attorney, such a lawsuit may suggest that your potential client may be inclined to blame the law firm or the attorney personally for any disappointment in the legal matter. Conversely, discovering that a client’s previous attorney sued the client may indicate that the client may not be trustworthy when it comes time to pay the bill.
Having this information does not bind attorneys to one course of action or another; rather, it allows attorneys to have more open discussions with clients and potential clients, make better decisions about representation, and plan a case strategy with as many of the client’s cards showing as possible.
The client and the Internet: How bad is the damage?
For all of the advancements ushered in by the Internet age, it has certainly created an entirely new class of privacy concerns. Yet, these privacy issues largely stem from individuals accepting the Internet’s invitation to share as much personal information as possible.
That is where the headache begins for attorneys: clients and potential clients who have been a little too free with their information online. Many clients actively report on their daily lives to the Internet, often also posting photos and geographic location information.
Unfortunately, these individuals often fail to grasp how many of their personal details could be used against them in a legal proceeding. On the other hand, attorneys have been increasingly forced to confront this reality over the past two decades or so such that assessing client online presence should be a common attorney habit nowadays.
Attorneys must be the first to identify online records pertaining to their clients so that they are able to identify and minimize the further dissemination of any harmful information. Such information may find its way to an opposing party regardless, and attorneys must adjust their case strategies to account for such a possibility.
Nevertheless, the Internet is a big place, and it’s very time-consuming to scour it thoroughly enough to identify any adverse client information floating around – even with the help of the client. Attorneys should consider third-party services such as PeopleMap on Westlaw that offer a comprehensive online search for an individual’s web presence to ensure that attorneys cast their net as widely as possible with the smallest investment of time necessary.
While it is critical that clients be fully honest with their attorneys, this often does not play out so smoothly in practice. Perhaps clients cannot remember everything, or maybe they’re hesitant to discuss a topic about which they are embarrassed or that they believe to have little relevance to the case. Indeed, for researching most, if not all critical information for vetting a client and planning initial case strategy, attorneys should look to such services that can search public records and other databases to maximize access to potential client information while also minimizing investment of attorney time.
PeopleMap on Westlaw can scrutinize potential clients to unveil as many unknowns as possible about the human element in a given case, and presents it in a comprehensive, easily understood format. PeopleMap allows attorneys to understand the publicly-available information about their clients and minimize the chances of any unpleasant surprises disrupting case strategies, so they can feel more confident navigating the often-treacherous waters of litigation.
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