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Civil Lawsuits After Criminal Convictions – Civil suits for money damages that follow – or run concurrently to criminal cases – worry my clients. I am asked often – can they sue me if I plead guilty – for what? For how much? Will insurance cover me?
Colorado and many other states have mandatory restitution laws that provide for the payment of restitution notwithstanding that the sentence was to probation, jail or prison. Following the sentencing – the victims – are no longer alleged victims -but are now the adjudicated victims free to seek civil damages in civil court for the impact of the crime or crimes has had on their lives.
Their tool? The civil remedies available to them in the civil justice system.
This article helps those who decide to take a plea bargain understand the civil lawsuit that may follow the sentencing in a criminal case.
The impact of a civil lawsuit can sometimes be more devastating to a defendant than the criminal case. In resolving criminal charges – a wise criminal defense lawyer will have a view to future civil damages claims. This issue here is a doctrine known as collateral estoppel….addressed below.
Essentially if possible – plead your clients to offenses that do not foreclose defending the same cause of action in civil court. One example is to plea not to battery in an assault and battery case – but see if you can amend the charge to criminal trespass.
The legal doctrine of collateral estoppel or “issue preclusion” provides that parties to a lawsuit or those “in privity with them” are bound by any decision of fact or law that was fully and fairly litigated on a previous occasion and necessary to that court’s judgment. Put another way, under the doctrine of collateral estoppel, the issue of liability is not relitigated when the defendant is found guilty. If the criminal defendant pleads guilty to assault in criminal case – the victim need not prove that an assault occurred in a later civil lawsuit for money damages since it has already been proven with a high burden of proof – beyond a reasonable doubt.
In order to invoke collateral estoppel – these are the tests that are applied.. a plaintiff must establish the following:
1) the plaintiff is the victim of a prosecuted crime;
2) the defendant in the criminal proceeding was convicted;
3) the prosecuted crime is one which gives rise to restitution to the victim;
4) the civil suit is based on the same essential allegations as the criminal offense.
Sometimes the criminal-civil connection is more direct. For example, the legal doctrine of collateral estoppel provides that, in some cases, the criminal conviction of perpetrators will be considered proof of some or all of that perpetrator’s legal liability in civil actions brought by the perpetrator’s victims and therefore does not have to be realleged and proven. Since the burden of proof is lower in civil actions than in criminal proceedings, the court can accept the criminal conviction as proof of liability in a corresponding civil action. This may accelerate litigation of the victim’s claim considerably.
While sometimes both the civil and the criminal cases move forward simultaneously, generally, the criminal case moves more quickly under the Colorado Speedy Trial Statute which establishes time limits for completing various stages of a criminal prosecution. Federal courts have a similar Speedy Trial Act, 18 U.S.C.A. Sec. 3161.
Especially when identical issues are being litigated in civil and criminal proceedings, civil judges may “stay” – or freeze the civil matter until the criminal case is decided.
The most famous example losing at the criminal level but winning at the civil stage was the murders of Nicole Simpson and Ron Goldman. While O. J. Simpson was found not guilty in the criminal court – he was later found to have been responsible for their deaths in subsequent civil proceedings and the victims’ families were awarded large monetary judgments.
The topics covered below are: Colorado Civil Remedies and Restitution In Criminal Cases, Types of lawsuits typically brought by victims, and the benefits and limitations of victim civil litigation,
The damages arising from the alleged losses claimed by the victims of crime range from direct out-of-pocket expenses, such as un-reimbursed medical costs and lost wages to the costs incidental to the crime and the victim’s participation in the criminal justice system, such as travel and related expenses.
The recovery of such things as long term and ongoing mental health support and/or monetary restitution that result from permanent disabilities is not usually ordered in criminal cases.
Colorado criminal restitution orders do not permit recovery for “pain and suffering” or the intangible losses that fall under the topic the loss of the enjoyment of life.
The most obvious difference between civil and criminal restitution claims is who brings the action – who is the “plaintiff.” Criminal cases are brought by the state on behalf of the People of the state of Colorado against the alleged perpetrator. Civil matters are brought by the victim directly against the alleged perpetrator and the case is the “Victim v. Defendant.”
The victim controls all of the decisions in the civil legal action.
Standing is a legal concept that refers to whether an individual has a legitimate right to address his or her complaints to the court. In order to have standing, one must generally be able to demonstrate that an injury has been suffered, be able to prove a sufficient personal interest in a cause of action or controversy, or be a necessary party in that his or her involvement is necessary to a fair and just determination of the outcome of the case.
One particularly important legal doctrine is called unjust enrichment. Unjust enrichment dictates that someone should not be allowed to benefit from their own wrongdoing. For example, someone who commits a murder should not be permitted to receive the proceeds of the insurance policy if he or she was named as the beneficiary of the decedent.
Many times unjust enrichment, which is a common law doctrine (i.e., based on established case law), is also provided through statutory schemes sometimes referred to as slayers statutes. Slayers statutes, similar to their common law counterpart slayers rules, would prevent individuals from profiting from their crimes by making it impossible for them to inherit the proceeds of an estate of someone they have killed.
One critical aspect of litigation is the threshold one has to establish in order to prove a case, otherwise known as the burden of proof. There is a major distinction between criminal and civil burdens of proof. In criminal courts, the beyond a reasonable doubt burden of proof is a very high burden, which is often described as having to prove your case to a very high degree of moral certainty. If a member of the jury has any reasonable doubt, which essentially means doubt that is formulated well enough that it can be expressed and supported by reason, that person should vote for acquittal of the defendant.
The civil justice system uses the mere preponderance of the evidence burden, which is sometimes expressed as 51 percent level of proof. Civil jury instructions, which are given to jurors by the judge prior to their deliberations on a case, often describe this as the “scales of justice tipping ever so slightly in the direction of one party versus another,” meaning that the jury must find for the party who is supported by the weight of the evidence, even if this is only slightly so. This difference in burdens of proof can often result in a defendant being acquitted (found not guilty) of criminal charges, yet having a judgment rendered against him or her in a corresponding civil action.
The civil justice system is in many ways similar to the criminal justice system with which most victim advocates are more familiar. To the extent that the two systems differ, much of this is reflected in the different terminology employed by each.
In a civil suit, the perpetrator is still referred to as the defendant, but the victim is now called the plaintiff. A legal action is commenced by the plaintiff (victim) against the defendant (perpetrator or negligent third party) by serving lawsuit papers and filing them in court.
A period of investigation called discovery occurs whereby the details of the matter are investigated by both sides in an effort to provide background information to bolster arguments in a way most favorable to their respective position in court.
At some point in time a trial is possible, although the vast majority of civil legal actions are settled out of court. In the event of a trial, a verdict is ultimately reached. The verdict is typically returned by a jury that has sat through the trial listening to the facts as presented in evidence. If the verdict results in a judgment for the plaintiff/victim, then he/she will attempt to collect the amount now owed to him or her. If the verdict is in favor of the defendant, the plaintiff/victim has lost the trial.
Prosecutors may express the opinion that the victim should wait until the criminal case is completed before starting a civil case for damages.
This is because his or her trial strategy may need to involve countering the defense claim that the criminal complaint is being pressed by the victim in the hope that a criminal conviction will forward a civil complaint. Prosecutors don’t want the jury to believe the defense’s predictable claim that “It’s all really about money, isn’t it?”
When a victim initiates a lawsuit, it is usually brought as a “tort” action.
The legal definition of a tort is a private or civil wrong or injury that typically involves the violation of a duty one individual owes to another, often based on the relationship they have to each other.
Torts are divided into two distinct categories.
The first is an intentional tort where someone intentionally injures another person.
The second is a negligent tort in which one person fails to perform some duty to care for another person and this negligence causes or contributes to the injury of that other person.
At least two elements must be proven to support a tort claim. One is liability. The plaintiff/victim must first prove that the defendant is liable, that is, his or her actions harmed the victim and caused the injury in a legal sense. This is sometimes called the proximate cause of the injuries.
The facts one uses to demonstrate liability differ depending upon whether the tort is intentional or negligent. The second aspect that must be proven is damages. Damages are a measurement of what harm has occurred, that is, the extent of the injuries suffered by the victim.
The types of legal actions pursued by victims, and potential sources of financial recovery, also depend upon whether they are suing the perpetrator directly (first party) or are bringing their action against another party (third party) for contributing indirectly to the harm suffered by the plaintiff.
A plaintiff seeks to hold a third party defendant accountable for their negligent, albeit indirect, contribution to the victimization.
In first party litigation, the victim is suing the defendant who is the actual perpetrator. Third party litigation, on the other hand, includes cases where the victim sues a landlord or hotel for failing to provide adequate security which created conditions that allowed a rape to occur. Another example is a lawsuit against a school for the negligent hiring and poor supervision of an employee who sexually abused children at the school.
Collectability is a general term that refers to the defendant’s ability to pay the judgments rendered against him or her. In first party litigation, where the action is brought directly against perpetrators of the crime, victims are often limited to collecting their judgment directly from the assets of the offenders. This is because insurance policies that might be available to pay certain kinds of judgments often exclude intentionally committed wrongful acts from coverage.
Most often, the likelihood of recovering damages on behalf of a victim in first party cases is directly related, in large part, to the wealth of the perpetrator.
Third party litigation, on the other hand, typically involves cases that are brought against entities or institutions that may have more than adequate resources to pay for victim damages and whose actions (or nonactions), due to the nonintentional nature of their negligence, may be covered by insurance. Thus, additional avenues for payment of judgments to victims may be available from insurance companies covering negligent actions.
A number of different types of civil lawsuits can be brought by victims against perpetrators depending on the facts of the case. Many of these lawsuits have direct linkage to criminal charges, and others are distinct from the criminal law. Although civil torts are not crimes, they often are closely related and typically involve the same event.
A brief overview of major types of tort actions potentially available to victims is listed below.
In the case of a criminal homicide (LINK), a wrongful death suit may potentially be brought in civil court. A wrongful death suit is a civil action that is brought when one person has killed another person and there is no excuse or other justification for this killing. For example, the law allows us to defend ourselves against the genuine threat of being killed.
Therefore, the defense of self-defense is often used to term a homicide as a justifiable homicide.
Assault and battery are two torts which, although historically separate and distinct actions, have been merged into one civil action in many jurisdictions. Traditionally, the civil action of assault is when a perpetrator has intentionally put a victim in fear of being battered. This fear must be real, based on the apparent ability of the perpetrator to commit the battery. The companion tort, called battery, is an intentional, offensive, non-consensual touching of the victim by the perpetrator. This touching is usually in the form of a severe injury.
Claims for emotional distress are often brought by victims against their perpetrators. It is important to note that the emotional distress claim is one that is distinct from the underlying claim of, for example, assault and battery. This is important because emotional distress claims often have longer statutes of limitations during which time a lawsuit may be brought. This means that if a victim had an underlying lawsuit based upon being battered, but that time frame has passed, he or she may still be able to bring an action for the emotional distress that was the result of that underlying battery.
Emotional distress may be either intentional or negligent. Intentional infliction of emotional distress occurs when the perpetrator has intentionally caused psychological harm to the victim. Often, the actions of the perpetrator must be considered extreme or outrageous and sometimes are described as “outside the bounds of common decency in normal society.”
The negligent infliction of emotional distress occurs under similar facts but there was no actual intention to cause the emotional distress; rather it was caused out of the negligence of the perpetrator.
There are several other theories of personal injury that are sometimes available to victims of crime. These include theories of parental liability where parents may be held civilly responsible for the injuries caused by their children.
Negligent entrustment is when one person allows another to use some dangerous instrument when he or she should have known that the other person might cause an injury, and injury does befall the victim.
Finally, civil conspiracy (also known as aiding and abetting) is a tort that is recognized in some jurisdictions. This is a situation in which persons other than the individual who actually committed the crime so substantially contributed to the perpetrator’s ability to commit the crime that they should also be held somehow responsible for assisting the actual perpetrator.
It is important to note that in a typical victim case, reaching the conclusion of trial and having a judgment rendered for the victim/plaintiff is often only the beginning of the struggle in recovering damages. First, verdicts and judgments may be appealed. A defendant who has lost can seek to have a judgment overturned, lowered, or set aside because the jury or the court failed to follow some legal procedure, or the result of the lawsuit is inconsistent with the prevailing law in a particular state.
The decision of this trial-level court may be brought up before an appellate court to render a decision as to the validity of the underlying decision, and even if the verdict itself is not attacked, the amount of the judgment may be appealed. Often, defendants seek to lower the amounts of money awarded by juries who they feel were overly zealous in awarding damages to the victim.
Assuming the judgment withstands any appeals or other challenges, then a collection of that judgment must commence. Depending on the defendant, this process involves several potential options.
Searching for assets. If a defendant is sufficiently monied so as to be able to pay a judgment and chooses to do so, the collection of that judgment may be similarly swift. Typically, this does not happen in victim cases. Potential assets include the following:
Real property (i.e., a home)
Other property (such as jewelry, motor vehicles, artwork, or other valuable holdings).
Other assets, such as financial holdings, interests in real estate, corporations, or partnerships
Other income earned by or owed to the perpetrator
Most states allow some method by which income earned or expected by the perpetrator can be garnished. Many times a victim will wait until the perpetrator has accumulated some assets to attempt to execute the judgment. Defendants may win lotteries, receive inheritances, or come into other windfalls that can open them to judgment execution.
The likelihood of recovery in first party lawsuits is significantly tempered by underlying public policy regarding insurance. Insurance policies do not cover intentional wrongdoing. This is based of long-standing public policy. It is fundamental to our society’s well-being that wrongdoing not be encouraged by having the judgments of intentional wrongdoers paid by insurance.
Counterbalancing these insurance policy exclusions are various exceptions to exclusion that are found in insurance contracts or are being carved out by creative attorneys. The types of exceptions to the intentional acts exclusions that are being developed by courts include those where the perpetrator was unable to or otherwise did not form the intent to commit the act.
For example, if someone of diminished mental capacity were to commit an act, and it was determined that he or she was unable to truly form the intent to commit these wrongs, then coverage might be allowed.
Third party suits brought against negligent defendants, who are not the actual perpetrators, allow for a much greater possibility for coverage by insurance policies. In the case of negligence, no intentional acts are committed by these third party defendants.
Three types of insurance are most commonly involved in crime victim cases:
Homeowner’s insurance policies
Automobile insurance policies cover acts that “arise out of the use, operation, or maintenance of the motor vehicle.” An obvious example would be a case where a drunk driver crashes into the victim, causing death or serious injury. These acts are considered within the scope of coverage of an automobile insurance policy.
Some difficult determinations involving automobile policies arise when the wrongful act is one that is not normally considered to arise out of a typical use, operation, or maintenance of a car. For example, if a drive-by shooting were to occur, should the automobile insurance policy be implicated? Courts differ in their interpretation of this, most finding that the motor vehicle is not actually an instrument of the drive-by shooting, and that the automobile policy will not be implicated.
Commercial insurance policies, similar to homeowner’s (or renter’s) insurance polices, provide liability coverage for events that occur on particular premises. These insurance polices tend to be broad and cover a number of different types of injuries or accidents. Coverage may not be limited to events that occur only at these locations. For instance, commercial policies may provide coverage for acts that are committed by employees outside the place of business, e.g., at a conference or seminar sponsored and/or conducted by the employer. Similarly, acts that are committed by the homeowner under certain circumstances may be covered, even when the homeowner is not actually on his or her property.
A trend in victim’s civil litigation cases involves legal retribution brought against the victim by the perpetrator. These may be brought in the form of separate lawsuits or counterclaims within the victim’s own lawsuit.
Typical counterclaims brought against the victim include the following:
Defamation, liable, and slander
Invasion of the defendant’s privacy
Conspiracy or fraud against the defendant
Extortion claims against the defendant
Claim that the victim’s action has caused emotional distress to the defendant
One additional avenue always available to defendants is to claim that the lawsuit was merely brought for vexatious purposes. A vexatious lawsuit is one that the defendant alleges was otherwise groundless and brought only to needlessly harm the defendant in an unwarranted or improper way.
Victim litigation may provide an opportunity for crime victims to find remedies against defendants but civil litigation is a complex and difficult process. These cases can also be very expensive to pursue.
These plaintiffs are responsible for the costs of litigation under most legal ethics rules and, if they lose their cases, they can be held responsible for the defendant’s costs as well. In addition the discovery period is difficult as victims are subject to probing and broad cross-examination by the defendant’s attorney who’s job it is to defend the criminally convicted.
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H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.
In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277
If you have questions about Civil Lawsuits After Criminal Convictions in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and also to provide quality legal representation to those charged in Colorado adult and juvenile criminal matters.
In the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg provides quality legal representation to those charged in Colorado adult and juvenile criminal matters…as regards Civil Lawsuits After Criminal Convictions.