Civil suits and uncivil criminal acts.
* Louise and John Williams are coming to see you. Their son, an honor roll student, was gunned down by feuding gangs at a housing project where his high school sent him to tutor a disabled child. It is a tragedy that has been the focus of extensive media attention.
* Mary Lewis left a telephone message asking that you call her at the local women's shelter where she is hiding, along with her children. Her husband, who beat her severely, came dangerously close to fulfilling his threats to kill her. She is afraid and needs protection.
While these callers share a common title--victims of violent crime--the nature of their individual victimization sets them worlds apart in terms of legal options and how you can best help them.
For example, how will the delay in reporting the rape affect Ms. Jones's right to seek justice, in both the criminal and civil contexts? Has rape trauma syndrome--which would explain her reluctance to come forward--been judicially recognized in this jurisdiction?
In addition to intentional tort claims against the victim's boss, can you prove a history of harassment by the perpetrator or assaults of others in that workplace? How did Ms. Jones's boss get into her hotel room? Were there breaches in security that may support a premises liability claim?
By way of comparison, do the Williamses have a wrongful death claim against the school for sending their son to a place school administrators should have known was unsafe? What is the viability of claims against the housing project owner? Are the school and housing project privately or publicly owned, and will they be able to claim immunity?
Was the gang shooting in the Williams case a superseding intervening act or was it a foreseeable criminal act? How can you help balance the family members' need for privacy and their desire to publicly support strong measures for swift criminal justice against the gang members? As a plaintiff lawyer, when and how do you interact with criminal prosecutors?
What about Mrs. Lewis? After she secures an order of protection, what are her short- and long-term options, both in terms of litigation and her personal life? Will she resume this abusive relationship if her husband apologizes, or was this latest act of violence the last straw for her? How will you handle her decision? If she wants to divorce him, should she also sue for damages for this battering and prior acts of domestic violence? What are the marital assets for judgment collection on the tort claim? How will that affect child support or alimony?
Comprehending the dynamics of the crime, the repercussions of victimization, and the legal options is essential in representing these clients.
Understanding victims of violence
When violent crime strikes, the victim's sense of personal safety in the world is shattered in an instant. Feelings of fear, helplessness, and lack of control can give rise to feelings of rage and anger. This emotional roller coaster usually produces a self-berating sense of guilt in the mind of the victim: "If only I had done something--anything--differently, this would not have happened."
The victims' hope that this is merely a nightmare from which they will soon awake is the security blanket of denial they Will be forced to part with as the reality settles in.
Abroad spectrum of victim reactions accompanies a single act of violence. For example, anyone who has experienced the murder of a loved one will struggle with that loss. The survivors' relationship with the deceased and the manner of that person's death will define the impact of their loss and the range of their legal options.
Compare a disabled mother of three children who loses her husband to an unknown robber at the convenience store where he works to a father who loses his infant son in an automobile accident caused by a drunk driver. While both losses are indeed tragic, the implications differ significantly.
In the first scenario, there are immediate concerns regarding loss of financial support. Workers' compensation laws may cap recovery against the decedent's employer, and claims may lie against the store's franchisor.
In the second scenario, recovery may be limited to the driver's auto insurance, or there may be claims against a business or social host who served the driver alcohol. In both cases, applicable life insurance benefits must be claimed, and estate issues must be addressed.
Those who were victimized over a period of time by someone they trusted, loved, or depended on struggle to come to terms with the conflicts inherent in abusive relationships. This is best illustrated in child hood sexual abuse cases brought by victims after they become adults.
Accepting their abuser's betrayal, exploitation, and manipulation can be difficult for these victims as they often also have positive feelings toward the abuser. For many, it is a process of accepting their own vulnerabilities while dealing with a pervading sense of guilt over their perceived lack of clear judgment. Others experience intense anger at those who failed to protect them from the abuse.
The spectrum of victim reactions to crime and its aftermath surely surpasses the scope of this article. A basic principle to bear in mind is that reactions that may seem abnormal to those outside the tragic event are really quite normal given the abnormal circumstances or events experienced by the victim.
Helping victims get help
Nearly every victim benefits from receiving professional counseling services by those trained in the particular area of victimization. You should be prepared to address the victim's or the family's reluctance to engage in therapy. Point out that while they may be competent in most areas of their lives, their training, education, or present coping skills probably have not prepared them for this violent experience.
Engaging in therapy can be a frightening prospect. It should not be viewed as a sign of weakness but as a sign of strength that the victim wants to face the truth. If needed, you can help pave the way. Provide a list of referrals to professionals with counseling experience in the type of victimization presented.
Obtain your client's permission to make an appointment for him or her and explain the circumstances to the therapist. Follow up with the client to make sure the appointment was kept. Let the client know that he or she must be comfortable with the therapist and, if not, another should be consulted.
While the plights of crime-victim clients are compelling, you must be their advocate, not their therapist. It is wise to draw that line early on to establish appropriate boundaries in the relationship and to ensure that responsible support services are in place to handle the inevitable crises that arise.
It is common for victims to discover that their ability to function on a daily basis has shifted dramatically. Their heightened sense of fear and the way they perceive others or themselves alters their ability to cope. Situations at home or work that they once handled without a hitch can easily escalate into a crisis that warrants professional intervention.
As with any attorney-client relationship, trust is an essential component for information gathering and effective advocacy. However, establishing a trusting relationship with crime victims can be challenging as their sense of distrust about the world is seldom left behind when they enter your office.
The nature of the crime can dramatically influence how you go about building this trust. For example, a rape victim may be uncomfortable being in a closed space, such as an office, with strangers. Encourage her to bring a family member or friend to the initial meeting.
Ask crime victims you are meeting for the first time to select a seat in the conference room where they will feel most comfortable. Address them by the name they prefer. Tell them they are free to stop or take a break from the interview at any time.
Consider the means of victimization and traits of clients when seeking to gain their trust. Accommodating their sensitivities will go a long way toward letting them know that you empathize with them and are competent to handle their case.
Victims are not only apprehensive about their plights but also may have never been to a lawyer or had extensive contact with the criminal and civil justice systems. Approaching this unknown terrain usually creates great anxiety for crime victims.
Strive to alleviate this by giving them a general overview during the initial interview. Also, let them know what a civil case entails and that further investigation may be needed before you agree to take their case.
Explain the differences and interplay between civil and criminal courts and the remedies that may be available in each forum. Review the nature of the civil attorney's job, specifying the terms of your retainer and the services you will provide.
Given their emotional state and the issues at hand, it is common for crime victims to feel intimidated and overwhelmed. At the outset, advise them it is in their best interest to ask questions on any point you discuss. Stress the importance of making informed decisions about their legal options. This helps to empower the victim with a sense of control in taking constructive action.
Same case, different court?
Representing victims in civil cases presents a host of issues arising from related criminal proceedings. Attention must be given to the status of a criminal case and to establishing a productive relationship with prosecutors.
Where an ongoing criminal investigation or proceeding exists, civil attorneys should meet with prosecutors as soon as possible. Many prosecutors are uncomfortable with the prospect of the victim taking civil legal action before the criminal case is concluded.
Generally, their concerns are twofold. First, defense attorneys in the criminal phase of trial could try to depict the victim as financially motivated.
Second, the civil attorney may secure statements from witnesses, which, if inconsistent with those discovered by the defense, could be used to undermine witness credibility in the criminal trial. Assure the prosecutor that you have a mutual interest in safeguarding the integrity of the criminal prosecution, and strive to work together to address these concerns.
As long as there is no statute of limitations problem, it is advisable to refrain from filing a civil suit until the criminal case is resolved. Remember that criminal investigations often prove to be a fruitful source of discovery. In most instances, prosecutors will divulge their investigation materials voluntarily after the criminal case is over. If they do not, you can seek a court order.
However, it is imperative that the civil attorney conduct an independent investigation. Matters that may not be the focus of a criminal case could play a significant role in establishing civil liability.
For example, if a fatal shooting occurs in a parking lot at night, the prosecutor may not be interested in the lighting conditions there. To a civil attorney, however, this fact may be critical to establish third-party liability and should be evaluated by a lighting or security expert as soon as possible.
If the statute of limitations is about to expire, suit must be filed to protect the victim's rights regardless of the status of the criminal proceedings. Once victims assert this right, they should not be penalized by their civil attorney's filing suit to protect their rights pending the outcome of the criminal trial.
The issue as to what is the governing statute of limitations merits careful analysis of the following factors: the age of the victim or surviving family members who assert a claim; the claims to be asserted--negligence, intentional tort, civil rights violations--under state and federal law; and the applicable time limitations for each claim.
If the time period has expired, evaluate whether there are grounds--such as insanity, infancy, duress, or coercion--for tolling the applicable statute of limitations, and what evidence exists to support this argument.
Unfortunately, a large number of crimes go unpunished. In cases where the perpetrator was not apprehended, the issue becomes whether a third party can be held civilly liable to the victim for its negligence, which somehow created the opportunity for the crime to occur.
For example, banks have been held liable for attacks on their ATM customers. Landlords have been held liable for attacks on tenants and guests at the property. Franchisors of convenience stores and gas stations have been found liable for crimes against franchise employees.
If perpetrators have been found not guilty in criminal proceedings, victims should not be deterred from bringing civil suits. The state may not have proven its case against the perpetrator beyond a reasonable doubt, but the civil attorney still may prevail under the civil preponderance of evidence burden.
A guilty verdict or plea in the criminal trial phase, however, inures to the victim's benefit in the civil case by establishing that the crime occurred under principles of res judicata and collateral estoppel. But regardless of the outcome of the criminal matter, any potential claim against a third party for its negligence in contributing to the criminal incident should be evaluated separately.
Fact gathering and issue evaluation
Civil cases by crime victims are among the most fact-sensitive of all personal injury cases. It is important to know the law in the jurisdiction where the crime occurred so you can target the areas of factual inquiry and properly assess potential theories of liability.
Obtain as much information about the crime as possible. Where and when did it occur? Why was the victim at that particular location, and what is his or her relationship to the premises owner? Was the criminal a stranger or someone the victim knew?
What situational factors contributed to the perpetrator gaining access to the victim? Was there a lack of security or breach in a security system? Was someone else responsible for the perpetrator having contact with the victim? Detailed fact gathering will help focus the inquiry and define liability theories.
All facts should be analyzed carefully and discussed with the client. The possibility that a defendant may be immune from liability should be considered. Charitable immunity and various governmental sovereign immunities have been found to bar liability for criminal incidents in a variety of cases. (Ex parte Purvis, 689 So. 2d 794 (Ala. 1996); Collins v. Chicago Transit Authority, 677 N.E.2d 449 (Ill. App. Ct. 1997).)
The impact of various potential defenses should also be reviewed, including issues of comparative fault and apportionment of liability among tortfeasors, both intentional and negligent. Do not ignore the possibility of counterclaims or affirmative defenses that may seek to blame the victim for the crime.
Although many of these finer issues may exceed the scope of the initial interview, explore their impact with the client early in the case review process. Clients who are surprised by the introduction of these issues midway through their lawsuit will probably feel vulnerable and uninformed. If they are warned of these scenarios in advance, they can prepare themselves for the challenge, which will help you be a more effective and respected advocate.
These cases present unique challenges in terms of proving liability and damages. The stages of the case should be fully explained to the client, and realistic time frames should be established. By providing a basic road map to the case, you will have shown clients what to expect.
Providing realistic expectations should assuage their fear of the unknown and avoid unwarranted criticism of your efforts. No matter how well planned, these cases have been known to take unforeseen twists and turns. Prepare clients' for the unexpected. Advise them of the potential for a summary judgment motion on the issues of liability and the potential for an appeal of that determination--regardless of whether the decision favors them or not.
Another area to address is the parameters of the investigation and discovery. Depending on the type of crime, victims may not have informed family members or other lay witnesses who will be needed to support claims. If that is the case, explore legal options for protecting a victim's identity and develop a strategy for informing witnesses when necessary.
In addition to the complaint, answer, and motions process, discuss with clients what personal information about their past is discoverable by the defense. Review the demands of discovery, such as depositions, interrogatories, and submissions to independent examinations by a physician or psychologist, with the client.
Providing an overview of the court's function in pre-trial matters and at trial is essential to prepare clients for handling those demands. Discuss these issues in the initial client meeting to avoid unnecessarily surprising clients after they have decided to go forward with civil litigation.
Establishing and recovering damages
Proving damages requires diligent preparation and scrutiny of details of the clients' victimization and its impact on their lives.
Psychological experts can provide objective evidence of the injury and can describe emotional scars that are sometimes hard for a jury to see. In most cases, a forensic economist is warranted to establish clients' economic losses. Using lay witnesses--family, friends, and coworkers--to establish physical and emotional changes in victims after the incident can be compelling for jurors.
You may believe strongly in your client's case and have the most heartfelt desire to see that he or she is made whole. But in the end, you must face the unavoidable question: By what means will a potential judgment be satisfied?
If a claim is brought only against the perpetrator, inquire about available assets to satisfy a recovery. If the perpetrator has insurance, evaluate the likelihood of collecting on it. Most personal and professional liability policies exclude claims for intentional torts, criminal acts, or claims against resident relatives. Often there are limitations on coverage for acts involving sexual misconduct.
Consider exceptions to exclusions, such as unintended consequences of intentional acts or other separate acts of professional negligence not subject to these limitations. If there is a criminal plea or conviction, a court may grant a motion for prejudgment attachment of assets to preserve them for judgment satisfaction.
If claims are made against a third party whose negligence contributed to the opportunity for the crime to occur, then general liability insurance may be available. However, these policies also may contain exclusions to coverage, such as intentional acts by an employer's servants or criminal acts by third parties. Depending on the particular status of the third-party defendant, there may be other assets for judgment satisfaction.
Sources of help
Not every crime, however tragic, gives rise to a claim for civil damages. Crime victims may need to seek out other sources of assistance.
In criminal cases, a court may order the perpetrator to pay restitution. State crime victim compensation programs, which are in place in all states, provide a source of restitution or reimbursement of crime-related expenses not covered by any other source. Sometimes the victim can rely on health insurance benefits or disability or workers' compensation benefits to pay for medical or psychological care.
In addition, an extensive network of victim support groups exists. (See sidebar.) You should maintain a list of local groups and agencies that help victims in your community, such as rape crisis centers and bereavement groups.
Make the leaders of these local groups aware of the legal options available to the crime victims they serve. Educating victims and their service providers increases the chances of victims' accessing the system in their journey toward justice.
RELATED ARTICLE: Who to call to get assistance for crime victims?
Resources for crime victims
Crime victims and their attorneys may benefit from these toll-free numbers for information and referrals on victim's rights, services, and criminal justice issues. This list was adapted from one compiled by the National Organization for Victim Assistance, a nonprofit victims' group based in Washington, D.C.
Childhelp USA/Forrester National Child Abuse Hotline (800) 4A-CHILD
Family Violence Prevention Fund/Health Resource Center (800) 313-1310
Justice Statistics Clearinghouse (800) 732-3277
Juvenile Justice Clearinghouse (800) 638-8736
Mothers Against Drunk Driving (800) 438-MADD
National Center for Missing and Exploited Children (800) 843-5678
National Clearinghouse on Child Abuse and Neglect (800) 394-3366
National Criminal Justice Reference Service (800) 851-3420
National Domestic Violence Hotline (800) 799-7233, TTD/TTY (800) 787-3224 for the hearing impaired
National Resource Center on Domestic Violence (800) 537-2238
National Victim Center (800) FYI-CALL Office for Victims of Crime Resource Center (a good statistics resource) (800) 627-6872
Rape, Abuse & Incest National Network (800) 656-4673 Resource Center on Child Protection and Custody (800) 527-3223
Helpful resources on the Web
Action Without Borders http://www.idealist.org/
Center for Restorative Justice & Mediation http://ssw.che.umn.edu/ctr4rjm/
Incest Survivors Resource Network International http://www.zianet.com/ISRNI/
International Society for Traumatic Stress Studies http://www.istss.com/
National Center for Post Traumatic Stress Disorder Information http://www.dartmouth.edu/dms/ptsd/
National Crime Prevention Council http://www.ncpc.org/
National Criminal Justice Reference Service http://www.ncjrs.org/
Tulsa Connection http://tulsa.unojust.org/
US Department of Justice--Office for Victims of Crime http://www.ojp.usdoj.gov/ovc/
Victim Assistance Online http://www.vaonline.org/
Violence Against Women Office http://www.usdoj.gov/vawo/
Beth G. Baldinger is a partner with Stark & Stark in Princeton, New Jersey.
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|Title Annotation:||Clients with Special Needs|
|Author:||Baldinger, Beth G.|
|Date:||Jun 1, 1998|
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