The Benefits of Researching a Potential Defendant Ahead of Time (Part 1)

Topics: Business Intelligence, Client Relations, Efficiency, Law Firms, Legal Innovation, Legal Research, Midsize Law Firms Blog Posts, Small Law Firms


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 an 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.

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.

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.

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.

In the second part of this article, we will discuss whether a defendant can be found to be “judgment proof” or effectively financially insolvent, and why that’s important information to find out before the case goes forward.