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The benefits of researching a potential defendant ahead of time

Jeremy Byellin

Investigating an opposing defendant is critical, in both criminal and civil contexts. Even prior to the filing of the legal matter, knowing all that you can about a defendant may be necessary for planning purposes, allowing you to decide on the best strategy with which to proceed or whether it’s even worth proceeding at all.

Although it may be impossible to completely familiarize yourself with a defendant prior to filing, the sheer magnitude of personal data available can be overwhelming, with the most prominent of these sources being public records.

Of course, public records themselves house mountains of information. Consequently, how does one know where to begin investigating a defendant?

Perhaps the best place to start is by asking what information would be the most relevant at the onset of the legal matter. Though there’s no doubt that some investigations may warrant their own unique inquiries on this matter, the following questions are generally useful for delving into public records for the most pertinent information for your legal matter.

Does the defendant have prior criminal convictions?

In criminal law contexts, this is likely one of the very first inquiries conducted — and for good reason. A potential criminal defendant’s prior criminal history can directly influence, if not outright determine, a number of initial questions.

For instance, prosecutors may sometimes decide to move for aggravated sentencing based on the criminal history of the accused. In some states, multiple prior convictions could result in harsh sentences for a relatively minor offense. Alternatively, depending on the type of offense, an accused’s prior criminal history – specifically, a lack thereof – often prompts prosecutors to make generous plea offers.

In short, an accused’s previous criminal history is almost always a necessary investigation for a prosecutor at the outset of the matter.

Nonetheless, this early need doesn’t diminish a prosecutor’s ongoing obligation to monitor a defendant’s criminal history as the case progresses, nor should it suggest that such a criminal history’s usefulness is limited to a matter’s earliest stages.

Indeed, a defendant’s prior criminal history can have a variety of uses throughout the proceeding. For one, any prior felony convictions or those for crimes of “moral turpitude” – that is, a crime involving fraud or dishonesty – may be used to impeach the defendant’s credibility, should he or she testify as a witness.

In addition, other prior convictions may be used to impeach the defendant on other grounds, such as by demonstrating potential inconsistencies in the defendant’s testimony; certain convictions may also be used to establish the defendant’s habit or routine.

Furthermore, a defendant’s new convictions or arrests can strengthen a prosecutor’s position in the matter – sometimes substantially so. Take, for example, a situation in which a defendant in a driving under the influence case refuses to accept any plea bargains so far offered by the prosecutor. The weekend prior to the next hearing, however, the defendant was arrested for public intoxication. The prosecutor, having researched the defendant’s criminal background immediately prior to the hearing, discovered this arrest, and was able to leverage this new information to persuade the defendant to accept a plea agreement – saving the time and expense of having to go to trial.

The glaring advantages of investigating a defendant’s criminal history in a criminal matter are hard to deny; nevertheless, the palpable benefits of performing the same research on a civil defendant should not be discounted.

As in criminal matters, one of the most notable of such benefits in civil cases is the use of criminal records for the purposes of impeaching the defendant’s credibility as a witness.

Aside from the general use conviction records involving felonies and crimes of “moral turpitude,” many criminal history records can be employed to unravel the defendant’s factual narrative, should the conviction have any connection to the facts of the case.

And it can be surprising how connected a seemingly unrelated criminal conviction could be to a factual narrative. For example, an investigation may reveal a controlled substance conviction in the criminal history of a defendant in a personal injury case. Is this conviction irrelevant to the facts of the case? Possibly; but it’s also possible that the defendant has an ongoing struggle with substance abuse that may have had a played a significant role in the injury to begin with.

The point is that it’s often difficult to determine whether a civil defendant’s criminal history could be related to the facts of the case. Because of the very personal nature of an individual’s criminal convictions, such records can be enlightening even under the most seemingly unconnected circumstances.

As such, a defendant’s criminal history should always be investigated.

Is the defendant “judgment proof”?

A defendant is “judgment proof” if he or she is actually or effectively financially insolvent. This term applies exclusively to civil law matters, and is not, strictly speaking, a formal legal defense. Essentially, judgment proof means that it may be very difficult to enforce a judgment against such a potential civil defendant.

As such, it’s plain to see the value of knowing the financial status of the individual against whom you are considering filing suit. That is, why even bother spending a significant amount of time, effort, and money to sue a defendant for a monetary judgment that can’t even be collected?

But that begs the question: How does one go about obtaining this information?

Although divining one’s complete financial circumstances may require access to relatively hard-to-reach documentation, public records databases can nevertheless provide substantial insight.

A public records search can, for instance, tell you whether the defendant has had any bankruptcies, along with the date of those proceedings. If a defendant is currently in Chapter 13 bankruptcy, it may be very difficult to enforce a judgment against him or her – and, in some circumstances, to even file a lawsuit against the defendant at all.

Even if the defendant’s public records history doesn’t suggest any kind of financial distress, he or she may simply lack any sizeable assets onto which a lien may be attached. While it certainly is possible to conceal some assets from prying eyes, public records could reveal a defendant’s ownership of lien-worthy property.

For example, a defendant’s DMV records may reveal ownership of not only automobiles, but also recreational vehicles such as watercraft and all-terrain vehicles. In addition, real property public records data may uncover not only whether a defendant owns his or her primary residence and whether it is encumbered by a mortgage or other liens, but also whether the defendant owns any additional real property.

Even if the defendant doesn’t own any property that’s easily discoverable through a public records search, such a search can still provide other clues to allow you to approximate the defendant’s financial circumstances.

A defendant without any publicly registered assets, for instance, may be listed as the owner of a business, and that business itself may hold a number of assets. Regardless of whether the business has any publicly traceable assets, the defendant’s affiliation with the business in itself may indicate financial resources sufficient to pay a hypothetical judgment.

Of course, it’s entirely possible that a public records search of the potential defendant will reveal absolutely no property of any value, which should give you pause before pursuing a civil action seeking monetary damages from him or her.

Thus, it’s prudent to investigate a potential defendant’s background to ensure that a lawsuit would even be worth your time.

Can the defendant’s history help fill in the blanks?

When contemplating a potential legal action, you may not have as much information as you’d like to proceed. Perhaps you have the identity of the potential defendant along with some of the relevant facts, but you’d prefer more. Maybe additional facts or other relevant parties?

Investigating a potential defendant in public records is an efficient and effective method of obtaining this information. Public records can reveal not only criminal backgrounds, as previously mentioned, but also civil lawsuits and judgments. Business and other organizational affiliations may provide further insight into the facts and other potentially relevant parties.

But perhaps one of the most useful sources of information to be scoured through a public records search is web and social media content relating to the defendant.

Social media platforms like Facebook and Twitter offer an abundance of personal information that may not be found elsewhere. Many individuals chronicle the events of their lives, down to each day’s most mundane detail – including not only text data, but also photo and video as well. What’s more, with geographic tracking features now integrated into many social media offerings, it’s easier than ever for users to announce to the world where they have been – information that can be freely available for anyone to view.

Beyond social media, the internet continues to offer a glut of personal information in the form of blog posts and news stories. The advantage that these sources have over social media is that there is a higher likelihood that the defendant didn’t originally publish the information pertaining to him or her that is available through these media, and thus the information gained from these sources may be less filtered.

Because of the raw enormity of the data available through public records searches, inquiries into a potential defendant’s background shouldn’t be limited to only those sources and purposes discussed herein.

Utilizing a public records search platform to collect and arrange social media and other web information will provide you with more comprehensive results that you won’t need to spend hours scouring through.

Leveraging these resources to find out all that you can about a defendant before initiating a legal matter will likely save time and effort in the long run — and even tell you whether suing is even worth your time at all – so be sure to give yourself the leg up by taking advantage of the information that’s out there.

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Thomson Reuters is not a consumer reporting agency and none of its services or the data contained therein constitute a ‘consumer report’ as such term is defined in the Federal Fair Credit Reporting Act (FCRA), 15 U.S.C. sec. 1681 et seq. The data provided to you may not be used as a factor in consumer debt collection decisioning, establishing a consumer’s eligibility for credit, insurance, employment, government benefits, or housing, or for any other purpose authorized under the FCRA. By accessing one of our services, you agree not to use the service or data for any purpose authorized under the FCRA or in relation to taking an adverse action relating to a consumer application.