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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!
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