The Litigation Process

The Litigation Process

Civil suits can involve claims for punitive damages as well as compensatory and pecuniary damages. Awards for compensatory damages (repayment of expenses) and pecuniary damages (to cover lost income) are supposed to restore victims to their former financial condition (make them “whole” again). They can receive the monetary equivalent of stolen or vandalized property, wages from missed work, projected future earnings that won’t materi- alize because of injuries inflicted by the offender,


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and outlays for medical and psychiatric care (hospi- tal bills, counseling expenses) plus recompense for physical pain and mental suffering (resulting from loss of enjoyment, fright, nervousness, grief, humil- iation, and disfigurement). Punitive damages might be levied by the court to make negative examples of lawbreakers who deliberately act maliciously, oppressively, and recklessly (Stark and Goldstein, 1985; and Brien, 1992).

In civil courts, injured parties and their kin can sue offenders for certain intentional torts. Wrong- ful death suits enable survivors to collect compen- sation for the loss of a loved one without justification or legitimate excuse and for assault, which covers acts sufficiently threatening to cause fear of immediate bodily harm. Suits for battery involve intentional, harmful, physical contact that is painful, injurious, or offensive. Suits charging trespass center upon the intentional invasion of another person’s land. Conversion of chattel suits accuse defendants of knowingly stealing or destroying the plaintiffs’ possessions or property through theft or embezzlement. Suits alleging false imprisonment contend that the offender held the plaintiff against his or her will, even if for a brief period of time, such as during a hostage taking or rape. Charges of fraud can arise from white-collar crimes if intentional misrepresentation and deception can be established. Finally, suits can allege that the defendant intentionally or recklessly inflicted emotional distress through extreme or out- rageous conduct, such as by stalking the plaintiff (Stark and Goldstein, 1985; Brien, 1992; and National Crime Victims Bar Association, 2007).

Civil actions commence when the plaintiff (also called the second party) formally files a com- plaint (also referred to as a pleading). This docu- ment includes a brief statement of the legal jurisdictional issues, a summary of the relevant facts of the case (the causes of action that show how the harm to the victim was a “direct and prox- imate result” of the alleged wrongdoer’s behavior), and a request for relief for the injuries and damages sustained (monetary compensation). The victim’s attorney brings the complaint to civil court and pays a fee. A deputy sheriff (or a privately retained

process server) must physically hand this written document to the defendant (also called the first party), along with a summons requiring a response to the allegations within a stated period of time (usually one month). The accused wrongdoer sub- mits an answer either admitting to the charges or, more likely, contesting them and issuing a defense (or perhaps even launching a countersuit).

In preparing for a trial to resolve the competing claims, both parties engage in a process called dis- covery, in which they exchange written replies to questions, documents, and sworn statements of eye- witnesses (including police officers). Just as in crim- inal proceedings, the typical outcome is a negotiated compromise agreement. But if an out- of-court settlement cannot be reached, the accused exercises his Seventh Amendment right to a trial, and the injured party has to prove the allegations in court. After considerable delays because of con- gested court calendars, the trial is held before 12 (or, in some states, six) jurors or perhaps only in front of a judge (Stark and Goldstein, 1985).

In civil proceedings, the defendant in third- party lawsuits is likely to allege contributory negli- gence (the injured party was partly responsible for what happened). In battery cases, the rebuttal might be victim provocation (leading to responses neces- sary for self-protection). In other lawsuits, the defense might argue that the plaintiff knowingly and voluntarily “assumed the risk”; for example, a woman alleging rape was drinking heavily and agreed to go to the man’s apartment (Stark and Goldstein, 1985; and National Crime Victims Bar Association, 2007).

Following opening statements presented by attorneys for each side, witnesses testify and are cross-examined, and physical evidence is intro- duced. Interrogatories (lists of questions for the other side to answer), depositions (answers to the opposing lawyer’s questions), and requests for documents may generate important evidence. Then each party’s attorney sums up, and the jury retires to deliberate. The jury votes and then ren- ders its verdict on which of the two versions of events seems more truthful. The jury awards com- pensatory and perhaps punitive damages if it finds

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for the plaintiff and rejects the defendant’s argu- ments. The losing party is likely to appeal the deci- sion, and a higher court can overturn the trial court’s verdict if errors in procedural law are dis- covered or if the jury acted contrary to the evi- dence. Appeals may take many years to be resolved (Stark and Goldstein, 1985).

Litigation in civil court usually follows rather than precedes adjudication in criminal court. Peo- ple who have been badly hurt usually wait to pro- ceed with litigation because the evidence that is introduced during the criminal proceedings can be used again in the lawsuit and generally is sufficient to establish that a tort occurred. Furthermore, if the civil action is filed too early, the defense attorney will use this fact to try to undermine the complai- nant’s credibility as a witness for the prosecution, claiming that the testimony is motivated by poten- tial financial gain. But if the civil action is not filed for years, the statute of limitations might run out, and it will be too late to sue the defendant. For example, in most states, lawsuits alleging assault must be filed within two years, before complai- nants’ and defendants’ memories fade and material evidence is lost or destroyed (Brien, 1992).

Possibilities and Pitfalls Injured parties who are considering civil litigation must weigh the advan- tages and disadvantages of this course of action. One reason civil lawsuits are relatively uncommon is that most victims conclude that the benefits are not worth the costs. In addition, many people are unfamiliar with this option.

Civil lawsuits have several attractions. First and foremost, victims can seize the initiative, haul their assailants into court, bring them to the bar of jus- tice, and sue them for all they can get. In criminal cases, prosecutors exercise considerable discretion and make all the important decisions, even in jurisdictions where victims have the right to be informed and consulted. In civil cases, victims can regain a sense of control and feel empowered. They are principal figures entitled to their day in court, are aware of all the facts surrounding the case, and can’t be excluded from the courtroom. It is up to them to decide whether to sue and whether to

accept a defendant’s offer of an out-of-court settle- ment. (In small-claims courts, plaintiffs don’t even need an attorney. They can present their own cases using simplified procedures designed to expedite trials, because not much money is at stake.)

Plaintiffs seeking large awards must hire attor- neys of their own choosing and can participate in developing a strategy and preparing the case in anticipation of the trial. Victims can achieve full reimbursement, perhaps even more money than they lost, through lawsuits. They can collect puni- tive damages far in excess of actual out-of-pocket expenses and can receive compensation for the mental pain and emotional suffering they endured. Defendants’ assets, including homes, cars, savings accounts, investments, and inheritances, can be attached (confiscated), and their wages can be garnished. Most attorneys practicing civil law accept cases on a contingency basis and don’t charge a fee unless they win. Suits can be brought by the victims’ family (parents, children, spouse, or sib- lings) if an injured party is too young, mentally incapacitated, or dies (Stark and Goldstein, 1985; Brien, 1992; and National Crime Victims Bar Asso- ciation, 2007).

Winning a judgment in civil court is easier than securing a conviction in criminal court—the standard of proof is lower and less demanding. In lawsuits, conflicting claims are decided by a preponderance of the evidence (the winning side is the one that presents the more convincing arguments, translated as “more likely than not” or “51 percent”), not by guilt beyond a reasonable doubt (proving the charges to a moral certainty). Therefore, a civil suit following a conviction in criminal court is likely to succeed because the same evidence and testimony can be used again in front of a second jury that does not have to reach a unanimous agreement and does not have to be convinced beyond a reasonable doubt. An acquittal in criminal court does not rule out civil action, because a jury still might decide in favor of a plain- tiff who presents a more persuasive case than the defendant. Even if the prosecutor drops the crimi- nal charges that were initially lodged by the police, a plaintiff might win if the evidence that came to


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light during the police investigation is presented in civil court. If plaintiffs win awards but defendants are unwilling to pay up voluntarily, sheriffs and marshals can be enlisted to enforce the courts’ judg- ments by seizing contested assets or property, which can be sold at public auctions to raise cash.

Because defendants in civil court do not face imprisonment or execution, constitutional protec- tions are less stringent than in criminal court. Defendants cannot ignore lawsuits for more than 30 days, or else they automatically lose (a default judgment). Nor can the accused plead the Fifth Amendment and refuse to testify on the grounds of self-incrimination. Defendants must reply to the questions put to them or risk a quick defeat. Rules of evidence are more flexible and, for exam- ple, allow the plaintiff to reveal the defendant’s prior convictions for similar acts, a disclosure that usually wouldn’t be permissible in criminal court (Stark and Goldstein, 1985; and Brien, 1992).

Successful suits can make victims feel vindicated: The judges and jurors sided with them, accepted their version of events, and rejected the defendants’ denials, excuses, or justifications. Victims teach perpetrators the lessons that crime does not pay and that wrong- doers ultimately will be held liable for their misdeeds. Reimbursement is soothing, and revenge is sweet. Civil suits are the only means of redress when the entire injury and loss is intangible and subsumed under the heading of pain and suffering.

Despite the prospect of financial reimburse- ment, several drawbacks deter most victims from pursuing civil actions. Civil proceedings are inde- pendent of criminal proceedings. The entire case must be fought all over again in the courtroom, this time at the victim’s expense without the back- ing of the government and its enormous resources. A statute of limitations may have run out—the time limits for filing a lawsuit vary by crime and by state; those with recovered memories of abuse during childhood may be entitled to extra amounts of time. Victims have to put their lives on hold for years while the litigation process slowly drags on.

Cases involve motions, hearings, conferences, negotiations, trials, and appeals. In the meantime, plaintiffs (and defendants as well) undergo a long,

drawn-out ordeal punctuated by moments of sus- pense, anxiety, frustration, despair, and humiliation. Despite their opposing interests and simmering mutual hostility, the warring parties must keep in contact (at least through their respective lawyers) for months or even years after criminal proceedings end. If negotiations fail and last-minute, out-of-court settlements are beyond reach, victims must take the stand and once again relive the incident in painful detail. After testifying, victims must submit to a withering cross-examination by the defense attorney that could raise questions of shared responsibility, damage the victims’ reputation, and expose the most intimate details about lifestyles, injuries, losses, and suffering. The backlogs and delays in civil court are worse than those in criminal court because liti- gation has become such a popular way to settle dis- putes. Win or lose, civil suits drag on for years before they are resolved, forestalling closure for victims who want to get on with their lives. Furthermore, the injured parties run the risk of being sued themselves. Countersuits by defendants against plaintiffs fit into a strategy of harassment and intimidation intended to force victims to drop certain charges, or to withdraw their suits entirely, or to accept unfavorable out- of-court settlements (see Stark and Goldstein, 1985; Brien, 1992; and National Crime Victims Bar Asso- ciation, 2007).

In the adversary system of civil proceedings, top-notch lawyers are said to be as important a factor as the facts of the case. Unfortunately, they probably won’t be interested unless great sums of money are at stake. Their contingency fees can range as high as one-third to one-half of the money awarded to plaintiffs, if they are victorious. Even victims who win may have to pay for most litigation expenses other than their attorney’s fees, such as filing fees, deposition costs, and expert witness fees.

Most discouraging of all is the problem of col- lecting the debt. Even in victory there can be defeat. If the offenders have spent or hidden the spoils of their crimes, it will be difficult for the plaintiffs’ attorneys to recover any money without incurring great expenses. Most street criminals don’t have what lawyers call deep pockets (assets like homes, cars, jewelry, bank accounts, investments

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in stocks and bonds, or business interests). On the contrary, many are virtually judgment-proof— broke and with no prospects of coming into money from work or inheritances (see Stark and Goldstein, 1985; and Brien, 1992).

No government agency systematically compiles records about the successes and failures of plaintiffs who have sued defendants in civil courts. The actual dollar amounts of some out-of-court settle- ments are kept confidential. Nevertheless, advocacy groups urge victims to consider exercising their civil court option, especially if the identity and where- abouts of the offender are known, if restitution is not forthcoming from criminal court proceedings, and if compensation is not available from insurance companies or government-administered funds.

Recognizing that few street criminals who com- mit acts of violence or theft have substantial assets or incomes, attorneys within the victims’ rights move- ment have developed a strategic alternative: lawsuits against financially sound third parties.

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