Looking Up Opposing Party's Past Cases

I'm writing an article about pseudonymity in civil litigation, and I wanted to accurately describe both its pluses and its minuses.

Here's one practical detail I'd like to adequately cover: My sense is that, when people sue you, it can sometimes be helpful to research what other cases they had filed against other parties. (Likewise, if you sue someone, it could be helpful to research what other cases had been filed against them.)

Perhaps they have a pattern of filing a particular kind of lawsuit, and that might prove relevant. Or perhaps they made particular assertions in those claims that might be useful. Or perhaps something found against them can be used for purposes of nonmutual collateral estoppel. Or perhaps it's something else, which I don't know about. If they had filed (or defended) those lawsuits pseudonymously, you would find it much harder to do that research. (Note that I'm inquiring into attempts to research past lawsuits filed by an opposing party, not opposing counsel.)

Am I right that lawyers sometimes do this sort of thing, and get useful information? Please let me know, either in the comments or by e-mail to volokh at law.ucla.edu. Many thanks!

Comments

[apedad]

Sun Tzu nods his approval.

[DaivdBehar]

Why not research the cases of opposing counsel for collateral estoppel?

[Rev. Arthur L. Kirkland]

That must have been some law school . . .

[DaivdBehar]

Hey, Artie. Time to be replaced by a diverse, Boomer.

[DaivdBehar]

All litigation privileges should be cancelled. The adverse party should be able to sue for malpractice in a straight manner. The alternative is the killing of lawyers, fully justified in formal logic. Formallogic should be an absolute defense to the homicide of the lawyer. Refusing to bow to formal logic violates the Procedural Due Process Right of the Fifth Amendment.

[apedad]

I flagged your comment.

[Xenantaya]

Yes, this is routine in my cases involving personal injury plaintiffs, usually because particular facts alleged in or related to those suits might be helpful to the defense. For example, a plaintiff might claim he had long term spinal degeneration from using your client's product, but a search might show he sued a doctor for malpractice involving his spine before ever using the client's product. Or a plaintiff might claim his injury from your client's product caused him to no longer be able to work, but a search might turn he has multiple felony convictions that would impact his claim for lost wages. Or the plaintiff might allege he was unaware of some supposed fact, but in a prior complaint of his he might have alleged that puroprtedly undisclosed fact.

[Dan Schiavetta]

Took the words out of my mouth.

As a defense-oriented firm, when a new case comes in, we do a litigation search as well as a google and social media search. A prior case might show that the claimed injury was preexisting and if plaintiff "forgets" about the case at deposition his memory can be "refreshed" and the proper demand for records made. Just one example.

We also do an opposing law firm search and a judge search (when a judge is assigned).

[Commenter_XY]

captcrisis....How do you use that information? I am genuinely curious.

[Darwinnie]

I too routinely check a party’s litigation history. It’s illuminating when they’ve made claims for the same injuries they’re alleging in a new suit, often spinal injuries or TBIs. I’ve had one where the plaintiff had to submit to a mental IME. I was glad to know so I could get those records in discovery. It also helps because they sometimes settle something, live off the proceeds, and then get injured again when those funds run dry. It’s good to know because plaintiffs seem to often exaggerate their injuries, if not straight up lie.

[WillDD]

Or he or she may not have identified the claim in a bankruptcy petition. While some of the wind has been taken out of the sails of the judicial estoppel defense, it's always worth knowing.

[I Callahan]

I'm old enough to remember a contributor here named Juan Non-Volokh. Wonder what happened to that guy...

🙂

[Eugene Volokh]

Well, he didn't sue anyone in his capacity as Juan Non-Volokh; if he had tried, he probably wouldn't have been allowed to. The general rule under American law (with some exceptions as to both sides) is that (1) private pseudonymous speech is usually constitutionally protected, but (2) pseudonymous litigation, whether as a plaintiff or as a defendant, is generally not allowed. (Doe defendants whose identity is simply unknown to the plaintiffs are a separate matter.) And this reflects the broader point that the rules within the judicial process are different from the rules outside it.

[Rev. Arthur L. Kirkland]

Some people seem to be surprisingly big fans of pseudonymous litigation, at least in circumstances involving partisanship.

[Gandydancer]

Thanks for the link, which illuminates EV's interest in this topic. I guess it can sometimes be useful that EV has such a determined and attentive stalker. But what is supposed to be "surprising" about his interest and approval?

[Rev. Arthur L. Kirkland]

With sycophantic clingers like you having Prof. Volokh’s back, his right-wing politics are still doomed in modern America. You guys get to whimper and ankle-nip as much as you like, of course.

[Commenter_XY]

Arthur....Thanks for that link. It made for interesting reading.

So....was 'Publius' ever 'outed' by CA?

[kkoshkin]

I've looked at opponents' prior cases to try to get a better sense of what they're going to argue and how past, successful opponents have countered those arguments.

Even if I anticipate the issues and know what general arguments are coming (and how to counter them), I'm better off knowing more precisely how the arguments are going to be presented. I also will have a better idea of what cases are going to be cited. Even if I was going to see those cases inevitably, I'd rather see them far in advance if possible.

Seeing the arguments and cases early on might also help me frame discovery requests.

So, long story short, this kind of research can be quite valuable.

[rsteinmetz]

Sometimes research is not really that necessary because everyone in a given community already know what's going on.

[David Nieporent]

Absolutely. I always do oppo research on both the opposing party and opposing counsel, whether I'm representing a plaintiff or a defendant.

In addition to just generally wanting to see what they have revealed about themselves, if I'm the plaintiff I want to know if there were other people who made similar allegations against that particular defendant, and what the defendant said at the time (as well as how the cases resolved). If I'm the defendant I want to know if the plaintiff is a serial plaintiff, and what sort of things he accused other people of.

[Bill Poser]

Not a lawyer but I suppose that it would be useful to know if the opposition had been declared a frivolous litigant.

[Mark G]

My firm has a practice in which we regularly litigate against the same set of opponents repeatedly about the meaning of provisions in the products they sell. We keep a database of all their briefs to check for prior inconsistent positions.

[kotodama]

Is it generally useful to research the opposing party? For sure. Does a pseudonym make that harder? At the end of the day, a little probably, but if you’re a party, I wouldn’t say “much” harder. If the opposing party’s litigation history is potentially relevant for some reason, then it should be fair game for discovery and they’ll have to cough it up one way or the other. That’s obviously not as simple as just pulling it up on PACER, but it’s hardly a Herculean task either. I’ve seen litigation history requested before; that’s common I think. So I’m afraid this doesn’t support the ideological point I assume EV was hoping to make.

In the patent context specifically, disguised plaintiffs are common. Folks call them PAEs (or NPEs or even “trolls” but the latter nomenclature gets some people in a tizzy). But they don’t use pseudonyms; instead they use shell companies. I’m guessing that ideology-wise, EV is totally cool with the latter.

[Gandydancer]

What "ideological point" are you assuming EV was hoping to make?

[Aladdin's Carpet]

"In the patent context specifically, disguised plaintiffs are common. Folks call them PAEs (or NPEs or even “trolls” but the latter nomenclature gets some people in a tizzy). But they don’t use pseudonyms; instead they use shell companies. I’m guessing that ideology-wise, EV is totally cool with the latter."

I mean, my understanding is that NPEs do not form shells to hide their identity, instead they exist to centralize patent claims under one roof so that one organization who knows how to prosecute claims can act instead of hundreds of plantiffs who have no idea what they are doing. I'm not a fan of them, but thats the idea right?

Hiding the persons name has a somewhat different purpose.

[mtkesq]

I do run a check in almost all litigation where prior injuries or claims may be relevant. If I am in a lawsuit about a return of a down payment from a cancelled real estate contract it is not really helpful. I also do searches of connections between expert witnesses and law firms. Had a property damage case where Plaintiff’s attorney had represented Plaintiff’s expert witness in a matrimonial action.

[Gandydancer]

Your theory being that the witness/former client was biased to give the "right" testimony in gratitude for getting a good result? That isn't obviously a more compelling source of prejudice than gratitude for getting hired and paid.

[mtkesq]

If the witness/former client had only been used as an "expert witness" by this particular attorney it could be more compelling source of prejudice.

[bernard11]

My sense is that, when people sue you, it can sometimes be helpful to research what other cases they had filed against other parties.

IANAL, but I think your sense is common.

"He likes to go low outside on an 0-2 count."

[Aladdin's Carpet]

Yes, according to the completely reliable show Suits. what you gotta do is go through their past cases, find the one in which the plantiffs council is secretly has a grudge against the defenses fiancee, and then use that to realize that a lawyer helping the defense is the real murderer, and then get the defendant off, then use the prosecutors past cases to develop a behavior pattern which you exploit to send him after the SEC, the former defense lawyer, and your own firm, but wait! You had merged earlier with a different firm, the get destroyed, and you get away scot free.

This is totally how litigation works 🙂

[Mark Leen]

I find it helpful. There could be a past bankruptcy that affects the present claim. Could reveal assets the party has. Could be factual statements they made in a declaration are relevant. Could be a finding of fraud or a criminal conviction against the opposing party. In rare circumstances, you could find and your client could purchase a judgment against the party and then foreclose on their lawsuit against your client. Also, I think it rattles opposing counsel when you know more about their client than they do.

[KenveeB]

I almost never do, but I exclusively practice criminal law so it's not really relevant. The only time I can think of using it was when I was arguing a case should be published because the same lawyer had raised the exact same argument over 20 times, so obviously an unpublished case wasn't sufficient. But that's pretty rare. 🙂

[Ruperttheskeptic]

While not exactly on point, I have certainly researched other cases in which witnesses have testified, especially expert witnesses. A simple Westlaw search once discovered at a particular expert's opinion, which he offered in my case, had been excluded based on a Daubert finding in a federal case in another state. Interestingly, that case was not mentioned in the CV for the expert that the opposing party provided in discovery. Even just searching Google disclosed in one case that an expert had published opinions in his field that were far, far from the mainstream. Similarly, searches of the names of non-expert witnesses disclosed very interesting facts in numerous cases. I think that it would behoove any litigant outside of mundane criminal practice to electronically search for information about their opponent and the opponent's witnesses. I would do the same for my own witnesses, as well. The cost is small. The benefit will usually be small or nonexistent. But in the rare case it can be priceless.