When Civil Law and Criminal Law Intersect
A personal injury hypothetical illustrates how the legal issues of individuals involved in a car crash can be as hard to successfully disentangle and fix as are their automobiles immediately post-accident. Learn how to spot and resolve the problems and know when to seek aid from other lawyers.
Factors to consider when a case has civil law and criminal law aspects:What are the consequences in a civil case of asserting Fifth Amendment rights during a criminal proceeding?
What are the consequences in a civil case of entering a guilty plea in a criminal proceeding?
What type of resolution of a criminal case is in the best interest of a client facing civil liability?
What information or discovery in a criminal case can be used in a civil case, and vice versa?
What effect might certain judgments, collections, insurance, and bankruptcy issues have on criminal proceedings?
Doug is a lifelong Packers fan. He drove to a party at a friend*s house to watch last Sunday*s game. Doug drank to excess during the game and drove home afterwards. On the return trip, his car crossed the centerline of a two-lane road and collided head-on with an oncoming vehicle, driven by Paul.
Police officers came to the scene, had probable cause to suspect Doug of driving while intoxicated, and obtained a warrant to draw Doug*s blood. A blood test showed Doug*s blood alcohol concentration was three times the legal limit. This was the fourth time Doug had been arrested for driving while intoxicated. Paul sustained serious injuries in the crash. As a result, Doug was charged with operating while intoxicated causing injury (fourth offense).
Doug immediately called a criminal defense lawyer. His automobile insurance company was also notified of what happened. Paul called a personal injury lawyer in the days after the crash. At this stage, there are already four lawyers involved in the case: an assistant district attorney (ADA), a criminal defense lawyer, a lawyer for the insurance company, and a plaintiff*s personal injury lawyer.
Specific concerns in a drunk driving case:Preliminary:
What is the duty to report to the insurance company?
Should Doug try to have the same judge on both the criminal and the civil case?
Should any part of either case be stayed?
Investigation and Discovery:
What should the criminal defense investigator do and not do?
What evidence should be obtained and retained?
Does the insurance company have witness statements?
Is there cellphone, video, or other electronic data? Who has it, and how can be it obtained?
Are there confidentiality considerations? Is the media involved?
Should Doug *plead the Fifth?* Will he testify at trial?
Damages and Penalties:
What potential civil and criminal penalties does Doug face? What can he do with his assets?
Is there insurance coverage? What are the limits? What is the insurance company*s duty to Doug? Has Paul*s lawyer pleaded Paul *out of coverage*?
Is Doug collectible? Should he consider bankruptcy?
If the assistant district attorney offers a plea deal, should Doug take it?
What kind of releases should Doug sign or not sign?
Particularly important items for the personal injury lawyer in these types of cases:A few days after the crash, Paul hires Mike, a personal injury lawyer. Paul has already been assigned a victim-witness coordinator through the district attorney*s office and knows that Doug has been charged with a crime and that Doug has hired a criminal defense lawyer. The case has been assigned to Judge Jackson. Paul is understandably angry about the crash and wants to be compensated, but also wants Doug to be punished for what happened. He asks Mike about his options.
Mike explains that timing is important in cases like this. Generally, there is a three-year statute of limitation for negligence torts in Wisconsin * so Paul can be patient while he waits for his injuries to heal. However, Paul should immediately notify his car insurer of the crash so that he is providing timely notice of his potential claims and so that his insurance company can conduct its own investigation of the crash.
Mike tells Paul that he might consider waiting to hire a personal injury lawyer while the criminal case is pending. He explains that there are three reasons to do this.
First, Doug*s criminal defense lawyer is entitled to wide-ranging discovery in a civil case. It is possible some of that discovery could make the ADA*s job more complicated and could make obtaining a conviction more difficult. Second, when Paul is cross-examined in the criminal case, he could be asked questions about having hired a personal injury lawyer so quickly, which might make him less sympathetic to a jury. Third, Paul*s civil case would likely be stayed pending the outcome of the criminal case anyway.
Mike explains another school of thought is that the personal injury lawyer should be hired right away so that the lawyer can do an immediate investigation and preserve evidence. In the end, Paul decides to hire Mike while the criminal trial is pending.
Mike explains that if Doug is found guilty or pleads guilty to operating while intoxicated causing injury (fourth offense), that verdict or plea will have preclusive effect in the later civil case. In other words, if the ADA proves her case, then Paul will not have to prove it anew in the civil case. That removes uncertainty in Paul*s civil case and potentially saves him time in preparing for the companion proceeding.
During Doug*s criminal trial, Mike updates himself on what transpires but does not personally appear in court. Once the case is over, Mike can order the trial transcripts or other parts of the court file if they will be useful in the civil case. In some situations, the plaintiff*s personal injury lawyer will attend the criminal trial. For instance, he or she might do so when there is no question about liability and the lawyer*s presence is either reassuring to the victim or helpful in developing the damages case in the eventual personal injury matter.
Particularly important items for the personal injury lawyer in these types of cases:When the time comes for Mike to file a personal injury lawsuit in Paul*s case, Mike explains that they will request it be assigned to Judge Jackson. Because that judge will already have knowledge of the underlying facts of the case, it is most efficient for her to hear the civil case and also helps reduce the risk of inconsistent findings in related matters.
A few months later, Doug is found guilty of operating while intoxicated causing injury (fourth offense) by a jury in the criminal trial and sentenced to prison. Doug asserted his Fifth Amendment right during the criminal investigation and chose not to testify in his own defense at trial. At the criminal trial, Judge Jackson instructed the jury that it cannot draw an inference of guilt from the defendant*s failure to testify about the facts relevant to the case.1
Doug is not entitled to that same jury instruction if there is a civil trial later in his case. Instead, in civil cases, *the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.*2
For this reason, pleading the Fifth Amendment in a criminal case can have important consequences in later civil cases. In numerous Wisconsin cases, courts have entered judgment against parties who asserted the Fifth Amendment during depositions, sometimes as a discovery sanction and sometimes on summary-judgment motion because of failure to rebut the moving parties* prima facie case.3
During the criminal investigation of the crash, police officers gathered evidence including witness statements, the *black box* from each vehicle, cellphone data, and traffic camera footage. Because the criminal case is now concluded, Mike can obtain all this information. Even though Paul will not need to prove liability in the civil case, some of this information may be useful if Paul brings a claim for punitive damages against Doug. Some of the evidence may also be important in proving the crash was a cause of Paul*s injuries.
Eventually Mike contacts Doug*s liability insurance company and makes a demand that Paul be compensated for his injury claim. The offer in response from the insurance company is inadequate, so Mike files a lawsuit against Doug. In the lawsuit, Paul brings claims against Doug*s insurance company and against Doug personally for punitive damages.
Doug*s insurance company does not provide coverage for punitive damages, so Doug is advised that he should hire a personal injury defense lawyer to defend that claim because the insurance company lawyer assigned to him will not be handling that part of the case. In the complaint, Mike makes a negligence claim and an intentional tort claim against Doug, and pleads them such that he does not plead Paul out of coverage.4
During civil discovery, Mike learns that Doug has minimal assets, especially after paying for his criminal defense lawyer. After several months, the civil case is resolved. Mike obtains payment for Paul equal to Doug*s liability insurance policy limits and a judgment against Doug personally for an additional amount.
Particularly important items for the personal injury lawyer in these types of cases:Mike is careful during the course of the case not to release any of Paul*s claims until the time is right. This could mean using a Pierringer5 release for certain parts of the case. Mike explains to Paul that although many judgments can be reduced in bankruptcy, typically punitive damages for intentional acts cannot. As a result, once Mike obtains the judgment against Doug, it should be enforceable. Whether it will be collectible is another matter.
At the criminal trial, Doug was ordered to pay restitution to Paul for the expenses not covered by Paul*s health insurance or other coverage. Additionally, Paul now has a judgment against Doug for the punitive-damages element of the claim. Because Doug is incarcerated he is not earning income, and the few assets he did have were liquidated to pay for his criminal defense and other bills. Fortunately for Paul, the judgment against Doug may run for as long as 20 years and may yet be collectible once Doug returns to work.