What you may or may not find in court documents for genealogy

In response to my recent post on litigation discovery documents, one of my readers correctly pointed out that some courts no longer accept filings of depositions and other discovery documents except in special circumstances. This started me thinking about the kinds of documents that might be researched in a courthouse and therefore, what a researcher could discover.

It is important to realize that whether or not any particular type of information is preserved in a court record is almost a matter of chance. For example, in most cases, a deposition of a party or witness would not be in the court file, but if the deposition were going to be used as testimony during the trial, the transcript would be deposited with the court and could become available in the court file. There is a lot of inertia in the courts and once a document gets into the court file, it is likely to stay there. Also, even if a deposition or other document is in the court record or file, that does not mean that the content of the document is helpful. The type of information that makes its way into the court documents, not only depends on the type of case or controversy, but also on whether or not the attorneys ask certain questions or provided certain information during the proceedings.

This is especially true if the decision in the case were appealed to a higher court. In that case, if the discovery documents, including the deposition were made part of the court record for any reason, they could be in the court file. In times past, depending on the particular court rules in effect, discovery documents may or may not have been kept in the court file. Some courts kept everything that had to do with the case, others returned exhibits and other court documents to the parties. In some courts, the discovery documents are destroyed if no one claims them.

It is common for a court reporter to make a summary or even a transcript of the court proceedings. For years, these court minutes or transcripts were taken down in shorthand. Now, transcripts are made on a mechanical or electronic court reporting machine and the transcript is transmitted directly to a computer. Lately, some courts have stopped using court reporters and record the proceedings in a video file. If you want a copy of the transcript, you have to purchase a CD or DVD copy of the video recording. If you want to have a written transcript, you have to pay a court reporter to make one.

Transcripts of court records vary widely in content and reliability. In one court in Arizona, the official court reporter, who took down the testimony at trial, lost all of his records for a long period of time. There was a huge controversy over the loss of those official records. In addition, many states have one to several courthouses that have burned in the past. For example, twenty-two Kentucky courthouses burned during the Civil War.  Some states have a more extensive list of burned courthouses, see Louisiana for example.

Some courts have a name index of the court records, others merely file the documents by date.  Some of the files are kept in modern archives, others are stacked in cardboard boxes in the courthouse basement or attic. Especially, if you have exhausted almost all of the possible records about a family, you should turn to the court records for further information. Very few families made it through their existence without a lawsuit or two, or without a probate or other disposition of the property.