Tag Archives: civil litigation

9/11 Ruling and Early Case Dismissals

Civil-LitigationAccording to a recent study to be published in the Virginia Law Review, the decision taken six years ago by the Supreme Court that transformed civil litigation in the federal courts has affected the powerless the hardest. The study looked at over 4000 opinions and orders in 15 federal courts across the US.

The consequential ruling allowed judges to dismiss cases soon after they are filed. The findings from this study show that before this ruling was implemented, cases brought by individuals represented by lawyers were dismissed 42 percent of the time. After the ruling, this rate has increased to 59 percent. Rates of dismissal for corporate plaintiffs remain pretty much the same – increasing by only one percent from 37 percent to 38.

The study also shows that employment discrimination and civil rights cases have become particularly vulnerable to early dismissal.

Before this ruling, plaintiffs could simply start a lawsuit by filing a short and plain statement of their claim in a document called a complaint. After the decision, plaintiffs were required to set out concrete facts at the outset. Judges were required to scrutinize complaints closely and to dismiss ones that strike them as implausible based on their instinct or their judicial experience.

Critics of this ruling like Justice Ruth Bader Ginsburg believe that it has “messed up the federal rules” governing civil litigation. However, supporters of the ruling believe that now plaintiffs cannot gain unfair settlement advantage by simply filing a lawsuit but instead need to have a strong argument for their claim to be taken seriously.

Professor Rienert who led the study points out that the study does not even account for the suits that were never filed by lawyers who already had determined their case would not win under the new standard. “If we kick more cases out prematurely,” Professor Reinert said, “we are potentially losing cases that could play an important role not only in the lives of plaintiffs but also in the law and society.”

The study does highlight the trend that cases that are dismissed are more often ones that are brought by people rather than by companies and thus, the ruling has more or less affected the less powerful.

Understanding Civil Litigation and Employment Screening

litigationBy now we are all aware of what the standard background check components are including criminal conviction checks, driving histories, credit reports, referencing, drug testing and more. Yet there exists a little-used component begging to be understood – the efficacy of civil litigation histories for employment screening purposes.

Civil litigation histories are typically misunderstood. Unlike criminal conviction records, driver’s license checks, or employment credit reports, civil litigation histories are comprised of civil lawsuits that may involve a candidate, but are extremely hard to identify because of the lack of normal identifiers contained in other available modules such as date of birth, address, social security number as well as physical description.

What is a Civil Lawsuit?

A civil lawsuit is basically a matter between two parties wherein one party alleges wrongdoing against another party. These matters can take the form of anything you can think of from dog bites, to car accidents or evictions, to recovery of money loaned to and individual party as well as wrongful death claims.

Unfortunately a civil lawsuit is typically between parties who know each other and thus no platform has been established to delineate one party from another to anyone looking in. Often a civil lawsuit becomes a dispute resolution technique when other methods are unsuccessful.

Since civil disputes are between specific parties and not actually matters involving or effecting public policy (except class-action lawsuits), these disputes are kept only between the interested parties even though they are matters of public record. It is up to the decision maker looking into these filings to discern whether or not any civil lawsuit(s) discovered are potentially of interest within the hiring process.

A Condensed History of Civil Litigation Checks

In the past the decision to investigate civil litigation histories originated with banking institutions who wanted to determine if a party that they intended to lend money to was litigious and thus exposed their loans to potential risk by attachment of funds by an opposing party to the borrower.

At just about the same time in history, the legal community determined that this research was very important to attorneys who sought to determine the “litigation posture” of either a prospective client or an opponent. The concept has evolved into being a very effective tool in the performance of Due Diligence studies across the spectrum of business-related matters, including acquisition, sale of a business, public-debt financing, taking an entity public, as well as the screening of employment candidates and/or those who would be otherwise associated with

Since the beginning, ‘suit searches’ as they are referred to in the public record research industry, the problem of subject identification has been a researcher’s greatest challenge to try to explain to a client why it cannot be determined that a particular lawsuit attributes to their subject.

Notwithstanding these facts, the lack of available identifiers in civil litigation files has contributed to increased cost and confusion as to the applicability of a discovered lawsuit bearing a similar or exact name to a subject in question. In this era of intense privacy legislation, that particular challenge has become vastly more formidable with the Gramm-Leach Bliley Act, the Fair and Accurate Credit Transactions Act, and numerous other statutes which have forced jurisdictions into removing identifiers from the public records over the past few years.

Understanding the Costs Involved

It is for this reason that the cost of a legitimate suit search is broken into two parts:

1. First is the index search which identifies all suits attributable to the name searched, and,

2. Second the file review and/or retrieval which authorizes a researcher to look at the file and attempt to determine if it applies to the subject. Salient items are copied which can identify the nature of the case, who the parties are and the status and/or outcome of the matter. The industry term for this second phase is known as “pulling cover, prayer, docket and disposition.”

Part one is usually billed on a per unit basis and part two is typically billed on either a per unit basis (where the jurisdiction’s prospective copy costs are predictable) or, as in the case of many of the major metropolitan jurisdictions, on an hourly basis due to the obvious lack of control a researcher has in:

ü identifying the case ü requesting the clerk to locate the case ü time to wait for the retrieval of the case, and ü time to review the case each of the components of which can be substantial.

For example: In the Federal Archives system, usually a minimum of two visits is required. The first is to make an appointment with the records clerk in order to determine and obtain a case’s accession number, and, at that time, the file retrieval process is started and within a prescribed period of time (sometimes up to two weeks) a re-visit is required to actually see the file!

Obviously, the research industry learned a long time ago that the time costs of metropolitan research must be borne by the client, otherwise the researcher would go broke!

Also critical in understanding civil litigation checks is the concept of time which is broken down as follows:

– Index Searches are usually fast because they are available on the internet, or through other proprietary private methods and sources. Remember to always get an index date from the index researched so that you will know how current the search is.

– Private databases rarely provide this because for the most part, the information is outdated and is not the most current information available as would be available at the clerk’s counter.

– A hand-search, as with a criminal index search, takes usually 1 to 2 days, dependent upon the location and limitations of the jurisdiction. The retrieval and review process is what takes the time, as with criminal convictions, because this part is not automated and has to be completed by hand by a public-employee clerk, and/or in jurisdictions where the public is still allowed to view the records, the vendor/researcher hired to do the search..

If a case is archived, expect delays just on the retrieval part of the process of up to two weeks. If the case is not archived, the speed depends on if the file is in the ready section of the clerk’s office, or scheduled to go to archives, which can delay retrieval up to one week. This is consistently true in cases where criminal matters not yet and/or fully adjudicated are banished to the archives unit of a particular jurisdiction and is a constant source of irritation to HR managers for example who must wait for the jurisdiction to respond.

After that, it’s up to the researcher how fast they can review the case, copy the necessary parts, and/or determine the applicability to the subject. Most researchers are very adept at making determinations using several factors including their gut feeling, as to whether a case belongs to your subject of interest. As a general rule, good researchers will copy more cases that appear to be attributed to your subject rather than less in order to error on the side of caution. With common names, however, sometimes the task is overwhelming and you might be notified that there are too many cases to research.

Understanding the Risks of Civil Litigation Histories in Recruitment

In the employment setting, civil cases pose a multitude of potential risks for a decision maker – not the least of which rests with making a wrong decision to employ based upon case information not actually attributable to the candidate. This is why most legitimate employment screening firms advise their clients against civil histories, unless there exists enough budget to thoroughly determine which discovered cases actually apply to the candidate. Sometimes there is no ultimate way to determine applicability of a particular case and the candidate must be interviewed again in order to provide information as to whether or not the case(s) discovered applies to them..

One of the widest abuses of civil litigation histories is in the area of seeking cases filed against former employers for worker’s compensation claims that are rejected by insurance carriers and the ensuing litigation is filed.

Many employers feel that if an individual was rejected by a carrier, or that the claim was ‘short paid’ by the carrier, that just the existence of one lawsuit reflects negatively on the candidate. As with any worker’s comp history, before any decision is made, each case should be researched thoroughly, and the candidate should be interviewed several times in order to determine if they are a potential troublemaker or in fact had a legitimate claim, that was mishandled.

Workers Comp litigation is usually pursued because of the validity of a particular claim, rather than a frivolous attempt to use the courts to perfect a less than legitimate claim. Historically we have viewed Worker’s Comp litigation discoveries as an almost validation of the legitimacy of a claim, and thus advise our clients to use that in a more positive light – meaning the candidate had a strong enough claim to fight for it rather than simply filing frivolous lawsuits. Of course more than one claim does attest to the potentially accident prone nature of a particular candidate (especially if his/her claims are legitimate) and could spell a death knell for candidacy as an innocent person who might regularly be involved in automobile accidents that are not his/her fault might have trouble getting car insurance.

All in all, it is always advised that worker’s compensation issues be omitted from any employment decision process because of the obvious volatility of this history as well as the subjectivity of the facts and outcome. The only real exception to this rule is the existence of multiple lawsuits for worker’s compensation claims against former employers, which is the only legitimate basis I know of after 27 years in the employment screening business with thousands of clients served, that may be used to eliminate candidacy. It is important to remember, however, the even if it is clear cut that the candidate poses a potential litigation risk, there will be a potential plaintiff’s counsel out there who will question the decision maker on the witness stand about how the worker’s compensation lawsuit history affected job performance. So if you plan to use this tool, you need to be aware of the potential repercussions in that regard.

What can you effectively use a litigation history for?

The answer relies primarily on the gut feeling of the decision maker.

Areas of specific applicability include for example complaints against employees in a fiduciary capacity who usurped corporate opportunity for personal gain and where no criminal file was pursued by a jurisdiction for whatever reason.

Another area where civil litigation can be used is when we screen employees for a property management company and discover an eviction history with prior residences or other same-type employers. This has a direct corollary and provides at least the basis for further review of the matter(s) with the candidate so that the interviewer can make a gut determination as to the veracity or potential litigation bias of the candidate.

As with the use of specifically applicable conviction histories in determining the job-worthiness of a candidate (for example stealing from the till cannot be used to avoid hiring an asphalt worker), such is the caveat in the use of civil litigation histories. However, the magnification used to scrutinize the decision maker who uses this tool will be vastly more intense than with the use of for example, the criminal conviction tool, because of the obviousness of the ramifications of generally hiring a convicted felon versus someone who was involved in a lawsuit.

In summary, while civil litigation checks do provide a wonderful window into the litigation attitudes of a prospective employee, the effective use of them depends on many factors:

1. Willingness on the part of the end user to thoroughly identify whether or not a case attributes to the candidate. This can get expensive with common names in multiple jurisdictions.

2. Understanding that the word “delay” is the order of the day in determining the ultimate civil litigation history of the candidate, and that true and thorough research of civil litigation histories is expensive and can outstrip the cost of standard employment screening several times.

3. Understanding that not all matters litigated have any bearing on a candidates’ abilities or prowess on the job, and that even the use of a discovered and validated civil case(s) will subject the user to incredible scrutiny – more so than the use of a conviction history or other tools.

4. In many cases identity cannot be determined by the information in the public record where the case is attributable to the candidate and the decision maker should avoid falling into the rut of laziness which is very alluring to HR managers when the term delay is used. They should simply look at the index data, which is not a determinant of a candidate’s litigation history, it is only a list of same or similar names identified to be involved in matters brought before that court.

With the multitude of good screening tools available in the employment screening world, civil litigation checks should be used wisely, obtained through competent research firms that understand what is involved in searching and retrieving civil cases. Firms that are members of the National Public Record Research Association, Public Record Retrievers Network, and/or National Association of Professional Background Screeners are usually qualified to conduct this more sophisticated type of research.

Ultimately civil litigation histories as a screening tool should be used in the context of managerial strategies to determine life suitability to a culture versus job suitability to a candidate.

Three Things You Must Know About Civil Litigation

civil litigationThe idea of civil litigation started during the latter years of medieval England. It was necessary to distinguish between crimes hostile to the government, actionable matters, and a variety of harms against individuals, civil matters. This part of the law is also known as “tort law.” Tort comes from a Latin word, torquere, ‘to twist’. With tort law increasing in England, there became a need for people who would specialize in this particular slice of the legal profession. Enter the civil litigator.

What Does an Attorney Do?

When you hire, or retain, legal counsel, he will take a look at your situation and decide if you have a justified claim. The lawyer will register the complaint and stand with you as your representative in court. Many times issues such as monetary damages will settle before the case even goes to trial.
What are the Benefits of Hiring an Attorney

By having an attorney work for you, you obviously will have someone knowledgeable with which to confer and talk over the legal aspects. Having someone manage the litigation of your case can make the whole process less stressful. A lawyer will find out if you want to resolve the case out of court or let it go to trial, giving you control of your case’s course. A good deal of attorneys work on a contingency basis. You don’t ante up unless you are victorious, or settle, your case. A usual fee is in the range of 33 percent of the total recuperated.

Attorney-Client Privilege

Once you’ve retained a lawyer and spoken to him regarding your circumstance, the attorney-client privilege has started. Once begun, the attorney cannot share with anyone about what you and he have talked about in private. Also, at trial, an attorney cannot testify to any information or knowledge that they became aware of during the attorney-client privilege. The privilege also remains in force after the attorney has ceased to represent you.

Common Misconceptions

Many people have the idea that civil litigation attorneys are simply out for themselves, are crooks or “ambulance chasers.” These characterizations may be true for a small portion, but certainly not all. Many attorneys receive personal satisfaction in helping someone who may not have known their legal rights. Your attorney is required to represent you with “zeal and competence.” An attorney violating this principle, may find himself on the receiving end of a malpractice lawsuit.


A good attorney will be a tremendous asset for someone seeking to recover monetary damages or to force, or prevent, a third party from acting in a prescribed way. An attorney can guide you through the labyrinthian jungle which the legal affair can become. Exercise due diligence in finding, and hiring, an attorney that suites your needs. You don’t need to retain the first lawyer you meet Instead, hire the one with whom you are comfortable and feel will do the best job representing you and your needs.

Do I Need a Civil Litigation Attorney?

Estate Planning - Changing A WillIf you need to file a lawsuit and don’t know how, you may want to consult with a civil litigation attorney. Going through a lawsuit can be a complicated process and qualified lawyer’s guidance can come in handy.

What Does a Civil Litigation Attorney Do?

A civil litigation attorney will take you through the entire process of filing and pursuing a non-criminal lawsuit. An attorney can also advise you on whether your case is best suited for court, or can be handled better outside of the courtroom. Some examples of civil litigation include:

• Alimony
• Personal injury
• Debt settlement
• Discrimination

Filing criminal cases is generally handled by government agencies, like the police or the state.

How Do I Know If I Need a Civil Litigation Attorney?

If you’re considering filing a lawsuit, you may want to consult with a litigation lawyer. As legal professionals, litigation lawyers know which cases have a good chance of being successful. They’re familiar with all of the procedures, steps, and necessary paperwork that needs to be done. Some cases are better handled using alternative dispute resolution, and a litigation attorney will be able to advise on your options.

How Much Does a Civil Litigation Attorney Cost?

Lawyers take different approaches to how they bill and how much they charge. Litigation attorneys may charge by the hour or may charge a contingency. Contingency means that you will not have to pay anything up front and your lawyer will take a preestablished percentage if you win your case. If your litigation attorney takes your case on a contingency basis, you probably have a very strong case. Rates will vary depending on where you live, so be sure to ask up front how much your lawyer will charge.

What Should I Expect from Working with a Civil Litigation Attorney?

Outcomes rely on many different factors, but your litigation attorney will represent you at every step in the process of filing a lawsuit.

With your lawyer’s guidance, your case might be settled privately, or you could end up going to court. If you win your case, you may receive monetary compensation or force the other party to cease a harmful activity.

Since litigation lawyers know the local laws and legal procedures, their legal expertise will put you in a better position to win your lawsuit.

civil litigation

Civil Litigation Lawyers – Do You Need One?

civil litigationIf you find that you should take some legal action and just aren’t sure how to go about it, you probably want to get in touch with a civil litigation lawyer. A lawsuit can be a tricky, intricate process and a knowledgeable attorney’s advice can save you time — and money.

What to Expect From a Civil Litigation Lawyer

A civil litigation lawyer will walk you down the path of filing and following up a non-criminal lawsuit. A lawyer can best advise you about where your case is best suitable. Not all civil lawsuits need to end up in court. Some situations where a civil litigation attorney would come in handy are:

  • Alimony
  • Personal injury
  • Debt settlement
  • Discrimination

The filing of criminal cases, as opposed to civil cases, are normally handled by governmental agencies such as the prosecutor’s office.

Find Out if You Need a Civil Litigation Lawyer

If you’re thinking about beginning a lawsuit, it’s always a good idea to get advice from an attorney. They can tell if you the odds of your case being successful as well as the procedures and required paperwork that will need to be completed. The attorney can also tell you if your case is one of those that are better off being handled through an alternate method of conflict resolution such as mediation.

What Does it Cost

Attorneys approach the question of billing in different ways. How they invoice and how much they ask in payment is left, within guidelines, up to each lawyer. Some civil litigation lawyers charge by the hour and others charge a contingency fee. If an attorney accepts your case on contingency, they you don’t pay anything until the case is settled and the lawyer gets a percentage of any winnings. Of course, you and the attorney will agree to their percentage prior to them taking the case.

If your attorney agrees to take you on as a client on a contingency fee basis, then they feel you have a fairly strong case. Regardless, make sure you ask about rates, charges and how they’re arrived at, up-front.

What Should You Expect

The outcome can depend on many factors, but that’s why you have an attorney. They can advice you at each step of the process. With their assistance, your case might be determined privately, out of court, or you may end up in court. If you win, you might receive financial compensation.

Since litigation attorneys know the local law and the procedures used locally, their expertise will put you in a good position to win your lawsuit. Definitely a much better position than if you try to handle the matter on your own.

civil litigation

Civil Litigation Histories and the Hiring Practice

civil litigationSince Edward Snowden became a household world, people are becoming more aware of background checks. Anyone with more curiosity is also learning what components make up the typical background check. Criminal convictions, driving records, credit histories and drug testing are some of the areas investigators are interested in knowing about. There’s still one item that isn’t often understood, except by lawyers. The power of civil litigation histories for employment purposes.

Civil litigation histories are usually not understood by layman and often even businessmen. While criminal convictions, driver’s license checks and credit reports can be easy to spot based on information such as date of birth, social security number and physical description, civil litigation histories don’t contain any of these normal identifiers.

Define “Civil Lawsuit”

A civil lawsuit is simply a concern between two people, or parties, where one individual claims wrongdoing against someone else. Civil lawsuits run the range from dog bites to car accidents to evictions. Wrongful death claims can also be tied up in civil lawsuits.

As civil disputes are between two parties, they usually don’t involve anything that would effect public policy. The disputes tend to be between the two parties involved and may end up being a matter of public record. It is up to the investigator looking into civil filings to tell whether any civil lawsuits are pertinent to the company’s hiring practices.

A Brief History of Litigation Screenings

In the past, the decision to investigate litigation histories started with banks who wanted to determine if a person to whom they were interested in lending money was litigious. If the recipient of the loan was found to be litigious, then the bank was concerned that their money was at risk of being attached by a third party who was engaged in a civil suit with the borrower.

As this was going on, the law community felt that this research was also important to lawyers who wanted to determine the “litigation posture” of either a potential client or opponent. This eventually evolved into a very important part of the Due Diligence process. From there, businessmen started scrutinizing litigation records when they were involved in business related dealings such as acquisition, sale of a business or before taking a privately held company public. From there it grew to be included in the screening process of job candidates.

Understanding the Costs

Since the normal identifiers, birth dates, social security numbers and the like, are not usually available in civil litigation files, the cost and confusion has risen. If a lawsuit is discovered that involves a party with the same or similar name as the proposed job candidate, then extra effort must be made to either include, or exclude, the potential new hire. The challenge became bigger with the Gramm-Leach Bliley Act and other statues and this has driven up the cost of a legitimate suit. To hold down costs, most searches now consist of two parts:

1. The index search which identifies all suits attached to the name in question.

2. The second is the file review and retrieval process which will authorize the researcher to get a copy of the file to read for the purpose of determining if any information contained refers to the subject in question.

Part one is billed on a per unit basis and part two is billed on either a per unit basis or an hourly basis, depending on the jurisdiction.

The Bottom Line

With the plethora of screening tools available, civil litigation checks should be used wisely and performed by research firms that thoroughly understand what information is being searched for and for what intended purpose. Civil litigation histories should only be used as one tool in the screening toolbox of a business seeking to hire a candidate.

An attorney experienced in business law should be consulted for further information on how to avoid minefields as well as cut related costs.