Written by attorney David Craig Lee

Should you sue your accuser? Sometimes the best defense is an aggressive offense!

Suppose you're charged with DUI, and you are a cute, perhaps buxum/well endowed young 21 year old lady, and you tell your lawyer about the sexual assault suffered at your intake by the jail staff. You've been ordered to strip while a male officer watches. You refuse to take your bra off while the man is watching, and then he pokes your bra while the other officer pepper sprays you.

Or let's imagine that you've been arrested for shop lifting, had no store merchandise on your person when arrested, and are charged as an accessory because someone in your group did shop lift. You swear that you didn't know that the person in your group was planning to steal, and even the video surveillance shows that you were on the other side of the store when the real shoplifter hid the merchandise.

And each person asks, "Should I sue? Can I sue?"

Each of these are loosely based on real and recent situations, here on Avvo.

In the first situation, the young lady came to me 18 months after the DUI arrest and wanted to sue the police. She told me that her DUI defense lawyer said to wait until her DUI was over. She said that she was tired of waiting, and that the more she thought about what happened to her, 18 months ago, the madder she got.

The second person kept telling the lawyers of the racist arrogant store security guard would not believe a word she said. The advice was to focus on defending, and then sue once she was found innocent.

WOOPS! You've just witnessed two glarring examples of legal malpractice (see the additional sources of information below), and worse: two examples of where justice could have been achieved ... (pardon the basketball analogy) with a fast break and lay-up to an undefended open goal!

Before I explain, please let me digress.

I have a confession: I believe my clients! And another confession: this curse essentially prevents me from being an effective, day-in/day-out, criminal defense lawyer.

And here's a secret of a good criminal defense lawyer: they just don't believe what their clients say. The really great criminal defense lawyers don't even ask their clients if they're innocent. (Historical aside: My dad defended a murder, and associated the famous Ray Jenkins to help defend the accused man. My dad recalls saying to Ray, "I asked him if he did it..." Ray started yelling, "No, No, don't tell me and never ask a murder defendant that question again!"

In defense of the criminal lawyer: a lawyer cannot put a person on the stand whom the lawyer knows will commit perjury. And, aren't all the jails filled with people who swear they're innocent? So, how do you effectively represent a class of persons facing jail time and who will say or do anything to avoid jail? You learn procedures, you work hard, you know all the sentencing guidelines, and other things which I don't know because I'm not a criminal defense lawyer.

Enough of this digression, let me focus on the meat.

If you are truly innocent, then YES, you should sue! 'A strong offense is a good defense.'

And before a tidal wave of accused people storm my office, let me say that I would be very surprised if either of these two individuals could find a lawyer to take their case on a contingency. I personally would ask for an affidavit from the person (establishing that I have good faith basis to sue) and, circumstances permitting, request a sizeable (maybe $5,000) non-refundable fee. (The fee also tells me that you firmly/absolutely believe that you are innocent; and is a polite way for both the lawyer and client to say 'no thanks.') The affidavit has it's own risk: the last thing a person facing a DUI or shoplifting case needs is a perjury charge.

Here's how I would have defended both the DUI and the Shoplifting: get the affidavit from the client, get as much confirming objective evidence of innocence, and sue the most culpable individuals, or at least prepare a well written complaint which I'd send with a demand letter asking that the claim be turned over to the appropriate insurance company or government entity. I would also calendar the one year anniversary, and file suit a least two months before.

When the prosecutor of the DUI or Shoplifting charge asked me for a plea offer, I'd suggest dropping one for the other. And if that didn't work, I'd be glad to proceed to trial on each, knowing we'll win!

Additional resources provided by the author

CRIMINAL DEFENSE LAWYERS, PLEASE UNDERSTAND THE STATUTE OF LIMITATIONS FOR MOST TORTS: IT'S ONE (1) YEAR FROM THE INJURY, NOT ONE YEAR FROM THE ACQUITTAL. I cite below a Tennessee Supreme Court decision on point: Lexis Overview: "The State argued that the citizens' action was barred by the one-year statute of limitations for personal injury actions contained in Tenn. Code Ann. § 28-3-104 and alternatively, that amendments to Tenn. Code Ann. § 9-8-307(a)(1)(N), which eliminated a cause of action for negligent deprivation of a constitutional right, were to be applied retroactively to bar the citizens' action. The court found that statutes should be applied prospectively unless the legislative history clearly indicated a contrary content and that there was no such intent in this instance. Further, the court explained that remedial or procedural statutes could be applied retroactively, but that § 9-8-403(a)(1)(N) was neither remedial or procedural. The court held that although the citizens' action was based on the deprivation of constitutional rights, it was actually a negligence action and negligence law should govern when the cause of action accrued. The court concluded that the injuries alleged by the citizens occurred more than one year before they filed their complaint, and as a result, their complaint was barred by the statute of limitations. Shell v. State, 893 S.W.2d 416, 1995 Tenn. LEXIS 14 (Tenn. 1995) Distinguish the Tort of Abuse of Process and the Tort of Malicious Prosecution: "To the contrary, it is generally held that HN15 while a cause of action for abuse of process accrues from the termination of the acts complained of, it does not await completion of the case in which the wrongful use of process occurred: Unlike an action for malicious prosecution where a legal termination of the prosecution complained of is essential, in an action for abuse of process it is not necessary, ordinarily, to establish that the action in which the process issued has terminated unsuccessfully. For this reason, a cause of action for abuse of process has been generally held to accrue, and the statute of limitations to commence to run, from the termination of the acts which constitute the abuse complained of, and not from the completion of the action which the process issued. Hyde Constr. Co. v. Koehring Co.., 321 F. Supp. 1193, 1207 (S.D. Miss. 1969) (citing 368 Mich. 71, 117 N.W.2d 105, 1 A.L.R.3d 948, 953). See, also, Cunningham v. State, 53 N.Y.2d 851, 422 N.E.2d 821, 822, 440 N.Y.S.2d 176 (N.Y. 1981); Penn v. Iowa State Bd. of Regents, 577 N.W.2d 393, 400 (Iowa 1998). Blalock v. Preston Law Group, P.C., 2012 Tenn. App. LEXIS 695, 21, 2012 WL 4503187 (Tenn. Ct. App. Sept. 28, 2012)

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