ADDITIONAL Ï»¿New York City New York Class Action Lawyer LISTINGS
[1][2][3][4][5][6][7][8][9][10][11][12][13][14][15]>>
Abstract
There are two distinct jurisdictions for justice relevant
to victims of crime: criminal and civil. Criminal courts deal
with that aspect of the justice system that determines guilt
or innocence with regard to crime and metes out criminal sanctions.
The civil justice system can be utilized by victims to pursue
their own private actions against perpetrators for the recovery
of monetary damages as well as for justice. This section discusses
the civil justice system, core elements and legal aspects
of civil litigation, and how victim service providers can
play a significant role in helping victims who seek justice
through civil litigation.
Learning Objectives
Upon completion of this section, students will understand
the following concepts:
Distinctions between the criminal and civil justice systems.
The basics/terminology of civil litigation.
Types of lawsuits typically brought by victims.
Defenses to civil litigation.
Proving damages in civil lawsuits.
The benefits and limitations of victim civil litigation.
Recommendations regarding civil remedies to victim service
providers and allied professions.
Statistical Overview
Personal crime is estimated to cost $105 billion annually
in medical costs, lost earnings and public program costs related
to victim assistance. When pain, suffering, and reduced quality
of life are assessed, the cost increases to an estimated $450
billion annually. Violent crime results in lost wages equivalent
to 1 percent of American earnings (Miller, Cohen, and Wiersema
1996).
Female victims of intimate violence annually suffer $61 million
in medical expenses and an additional $89 million in broken
and stolen property (Ibid.).
Crime victims in 1992 lost $17.6 billion in direct costs,
according to the National Crime Victimization Survey (NCVS).
These costs included losses from property theft or damage,
cash losses, medical expenses, and amount of pay lost because
of injury or activities related to the crime (Klaus 1994,
1).
Economic loss of some kind occurred in 71% of all personal
crimes. For crimes of violence, economic loss occurred in
23% of victimizations. Household crimes of burglary, theft,
and motor vehicle theft involved economic loss in 91% of all
victimizations (Ibid., 1).
During each fiscal year, 1996 and 1997, U.S. district courts
terminated an average of 296,000 cases. Approximately 84%
of these cases were civil, and 16% were criminal cases (BJS
1999).
Of the nearly 500,000 civil cases terminated during fiscal
years 1996-97, 19% (96,284) were tort claims in which plaintiffs
claimed injury, loss, or damage from defendants' negligent
or intentional acts (Ibid.).
Property valued at $15.6 billion was stolen in connection
with all Crime Index offenses in 1994 (FBI 1995).
During 1996, federal courts alone ordered more than $1.5 billion
in monetary restitution and fines (BJS 1997).
Introduction
While the physical and psychological impact of crime may be
considered the most obvious and serious tolls taken by any
crime, the financial impact can be devastating. The financial
losses incurred as a result of crime (unforeseen medical expenses,
psychological counseling costs, and the need to replace stolen
property) can be as debilitating as any other type of injury
suffered by crime victims.
OVERVIEW OF LOSSES SUFFERED BY VICTIMS OF CRIME
Victims of crime suffer tremendous losses as a result of
criminal victimization. As noted above, annual losses of $450
million are associated with major violent crime victimizations,
and approximately $40 billion is attributed to monetary losses
from fraud and other economic crimes. Financial measures of
losses attributed to crime victimization are only crude tools
used to assess the true damages suffered by victims in the
hope of somehow lessening the impact of the crime. The contribution
of such a financial analysis aids in both impressing upon
the criminal justice system the severity of the victimization
and gauging what measure of financial recovery might help
victims in addressing their losses resulting from crime. It
must be emphasized, however, that money damages alone are
never a complete measure of the harm caused by crime, but
just a useful tool in addressing certain aspects of the aftermath
of criminal victimization.
The losses suffered by victims range from direct out-of-pocket
expenses, such as unreimbursed medical costs and lost wages,
to costs incidental to the crime and the victim's participation
in the criminal justice system, such as travel and related
expenses. In addition to these more immediate and short-term
costs of crime, victims often incur long-term costs due to
the need for ongoing mental health support and/or support
as a result of permanent disabilities. In addition to these
more tangible types of losses, victims' losses can also be
in areas termed "intangible" such as pain and suffering
or the loss of the enjoyment of life and other such losses.
Accurate and complete documentation of financial losses are
required in the pursuit of financial remedies for victims
to ensure valid recoveries for victim losses. This is true
regardless of the form or forms of financial recovery victims
will seek or be eligible to obtain (i.e., any combination
of civil litigation recovery, restitution, or compensation).
Service providers can provide critical assistance to victims
in helping them acquire and maintain these records, or, at
least, by providing victims with guidelines about the types
of documentation that are needed to depict their out-of-pocket
and projected expenses for the future.
Civil Versus Criminal Justice
Criminal and civil are the two major and distinct components
of America's justice system. The criminal justice system determines
guilt or innocence in regard to crimes and metes out criminal
sanctions. The civil justice system, among other things, permits
crime victims to seek civil remedies for the physical and
psychological injuries they have suffered as a result of criminal
acts, permitting vindication of their rights and recovery
of financial reparations from offenders.
In some ways, the civil justice system is complementary to
the criminal justice system. However, civil justice has numerous
distinctions, many of which may be quite beneficial to victims
of crime. The discussion below will provide an overview of
the civil justice system that is basic to a victim advocate's
understanding of this process.
Civil litigation has become increasingly important for victims
for various reasons. First, victims can encounter great financial
distress due to their victimization. Medical and therapy bills
mount up. Often jobs or income, as well as property and other
assets, are lost. The civil justice system provides a mechanism
for victims to seek recovery for losses resulting from their
victimization.
MECHANICS OF A CIVIL ACTION
Numerous activities occur prior to the commencement of a
legal action, perhaps the most important of which is engaging
the counsel of a competent attorney. This also illustrates
the first significant distinction between the civil justice
system and criminal justice system for victims--in the civil
process victims hire their own attorneys to pursue their actions.
A second important distinction between civil and criminal
procedures relates to who the "plaintiff" is. In
criminal court, the prosecutor is a government employee who
brings an action on behalf of the government entity against
the alleged perpetrator. In civil matters, the case is brought
by the victim directly against the perpetrator and is typically
captioned "Victim v. Perpetrator" as opposed to
the typical criminal action caption of "State v. Perpetrator."
The victim is in control of the civil legal action as opposed
to being a secondary party, at best, to a criminal prosecution.
KEY ASPECTS OF CIVIL REMEDIES
Standing: Who can sue? Standing is a legal concept that refers
to whether an individual has a legitimate right to address
his or her complaints to the court. In order to have standing,
one must generally be able to demonstrate that an injury has
been suffered, be able to prove a sufficient personal interest
in a cause of action or controversy, or be a necessary party
in that his or her involvement is necessary to a fair and
just determination of the outcome of the case.
Unjust enrichment: Who can recover? One particularly important
legal doctrine is called unjust enrichment. Unjust enrichment
dictates that someone should not be allowed to benefit from
their own wrongdoing. For example, someone who commits a murder
should not be permitted to receive the proceeds of the insurance
policy if he or she was named as the beneficiary of the decedent.
Many times unjust enrichment, which is a common law doctrine
(i.e., based on established caselaw), is also provided through
statutory schemes sometimes referred to as slayers statutes.
Slayers statutes, similar to their common law counterpart
slayers rules, would prevent individuals from profiting from
their crimes by making it impossible for them to inherit the
proceeds of an estate of someone they have killed.
Also, many states have rules that provide immunity, referred
to as interspousal immunity, between married individuals that
prevents them from suing each other, for example, in cases
of assault. However, courts are increasingly rejecting the
use of interspousal immunity as a defense for domestic violence
or similar crimes.
Burden of proof. One critical aspect of litigation is the
threshold one has to establish in order to prove a case, otherwise
known as the burden of proof. There is a major distinction
between criminal and civil burdens of proof. In criminal courts,
the beyond a reasonable doubt burden of proof is a very high
burden, which is often described as having to prove your case
to a very high degree of moral certainty. If a member of the
jury has any reasonable doubt, which essentially means doubt
that is formulated well enough that it can be expressed and
supported by reason, that person should vote for acquittal
of the defendant.
The burden of proof is much lower in a civil trial. The civil
justice system uses the mere preponderance of the evidence
burden, which is sometimes expressed as 51 percent level of
proof. Civil jury instructions, which are given to jurors
by the judge prior to their deliberations on a case, often
describe this as the "scales of justice tipping ever
so slightly in the direction of one party versus another,"
meaning that the jury must find for the party who is supported
by the weight of the evidence, even if this is only slightly
so. This difference in burdens of proof can often result in
a defendant being acquitted (found not guilty) of criminal
charges, yet having a judgment rendered against him or her
in a corresponding civil action.
CIVIL LITIGATION CAN EMPOWER VICTIMS
The recovery of financial losses, although extremely important,
is not the only reason that victims look to civil litigation.
Civil litigation can empower victims since they occupy the
status of plaintiff, not merely witness. Also, going to civil
court often allows victims, who so choose, to publicize the
acts of the perpetrator. Further, the recovery of financial
benefits reinforces the notion that the victim did suffer
significant injuries and that it was the perpetrator who was
responsible for injuring the victim and, therefore, made to
pay for them.
CIVIL LITIGATION AS A DETERRENT TO CRIME
Civil litigation often works as a method of crime prevention.
When perpetrators, or other negligent parties involved in
creating the conditions of victimization, are made to pay
for their violent acts or negligence, these acts are often
not repeated. For example, when hotels are ordered to pay
money damages for their lack of adequate security that caused
rapes or assaults to occur, they often respond by improving
security to avoid future lawsuits. This is true of many other
institutional or third party defendants who have had to pay
damages in negligence suits.
Civil Litigation Basics
As stated above, the civil justice system is in many ways
similar to the criminal justice system with which most victim
advocates are more familiar. To the extent that the two systems
differ, much of this is reflected in the different terminology
employed by each. As most victim advocates and service providers
will be more familiar with the nomenclature of the "criminal
side," a glossary of terms from the civil side is provided
at the end of this section. Certain basic terms and phrases,
however, will be defined here to help the reader to understand
the following text.
In a civil suit, the perpetrator is still referred to as
the defendant, but the victim is now called the plaintiff.
Essentially, a legal action is commenced by the plaintiff
(victim) against the defendant (perpetrator or negligent third
party) by serving lawsuit papers and filing them in court.
Subsequently, a period of investigation called discovery occurs
whereby the details of the matter are investigated by both
sides in an effort to provide background information to bolster
arguments in a way most favorable to their respective position
in court.
At some point in time a trial is possible, although the vast
majority of civil legal actions are settled out of court.
In the event of a trial, a verdict is ultimately reached.
The verdict is typically returned by a jury that has sat through
the trial listening to the facts as presented in evidence.
If the verdict results in a judgment for the plaintiff/victim,
then he/she will attempt to collect the amount now owed to
him or her. If the verdict is in favor of the defendant, the
plaintiff/victim has lost the trial.
Often questions arise as to any direct relationships that
exist between the civil and criminal justice systems. For
the most part they are, at least theoretically, separate and
distinct systems. However, it would be naïve to think
that despite this structure, there are no practical effects
of these systems on each other. For example, a prosecutor
will often be very interested in the victim's current status
or future intentions regarding filing a civil suit. This is
because his or her trial strategy may need to involve countering
the obvious defense claim that the criminal complaint is being
pressed by the victim in the hope that a criminal conviction
will forward a civil complaint. Prosecutors don't want the
jury to believe the defense's predictable claim that "It's
all really about money, isn't it?" Also, the victim will
need to take into account the status or the outcome of the
criminal proceedings and the effects of these on the approach
he or she should take regarding a civil action.
Sometimes the criminal-civil connection is more direct. For
example, the legal doctrine of collateral estoppel provides
that, in some cases, the criminal conviction of perpetrators
will be considered proof of some or all of that perpetrator's
legal liability in civil actions brought by the perpetrator's
victims and therefore does not have to be realleged and proven.
Since the burden of proof is lower in civil actions than in
criminal proceedings, the court can accept the criminal conviction
as proof of liability in a corresponding civil action. This
may accelerate litigation of the victim's claim considerably,
as will be discussed below.
VICTIMIZATION AS A TORT: A PRIVATE ACTION
When a victim initiates a lawsuit, it is typically brought
as a "tort" action. As Professor W. L. Prosser tells
in his learned treatise The Law of Torts, the word tort is
derived from the Latin "tortus" or "twisted."
As Prosser states, the metaphor is apparent: a tort is conduct
that is twisted, or crooked, not straight . . . broadly speaking,
a tort is a civil wrong (Keeton et al. 1984).
Essentially, the legal definition of a tort is a private
or civil wrong or injury that typically involves the violation
of a duty one individual owes to another, often based on the
relationship they have to each other. Torts can be divided
into two distinct categories. The first is an intentional
tort where someone intentionally injures another person. The
second is a negligent tort in which one person fails to perform
some duty to care for another person and this negligence causes
or contributes to the injury of that other person. These will
be discussed in greater detail below.
Proving a tort case: liability. At least two elements must
be proven to support a tort claim. One is liability. The plaintiff/victim
must first prove that the defendant is liable, that is, his
or her actions harmed the victim and caused the injury in
a legal sense. This is sometimes called the proximate cause
of the injuries. The facts one uses to demonstrate liability
differ depending upon whether the tort is intentional or negligent.
The second aspect that must be proven is damages. Damages
are a measurement of what harm has occurred, that is, the
extent of the injuries suffered by the victim.
First party and third party litigation. The types of legal
actions pursued by victims, and potential sources of financial
recovery, also depend upon whether they are suing the perpetrator
directly (first party) or are bringing their action against
another party (third party) for contributing indirectly to
the harm suffered by the plaintiff. A plaintiff seeks to hold
a third party defendant accountable for their negligent, albeit
indirect, contribution to the victimization.
In first party litigation, the victim is suing the defendant
who is the actual perpetrator. Third party litigation, on
the other hand, includes cases where the victim sues a landlord
or hotel for failing to provide adequate security which created
conditions that allowed a rape to occur. Another example is
a lawsuit against a school for the negligent hiring and poor
supervision of an employee who sexually abused children at
the school. Other third party lawsuits are brought against
government agencies, for example, corrections officials or
mental health officials for the negligent release of dangerous
individuals, or against other kinds of employers who negligently
employ and retain persons who victimize other employees or
customers.
It is important to note that there is a significant burden
on the plaintiff/victim to demonstrate that the negligent
third party was actually negligent. Frivolous deep pocket
searches such as seeking out a defendant with greater financial
means than the first party defendant are discouraged by the
law and the courts.
Collectability: making judgments real. One significant aspect
of first party versus third party litigation is the issue
of collectability. Collectability is a general term that refers
to the defendant's ability to pay the judgments rendered against
him or her. In first party litigation, where the action is
brought directly against perpetrators of the crime, victims
are often limited to collecting their judgment directly from
the assets of the offenders. This is because insurance policies
that might be available to pay certain kinds of judgments
often exclude intentionally committed wrongful acts from coverage.
Most often, the likelihood of recovering damages on behalf
of a victims in first party cases is directly related, in
large part, to the wealth of the perpetrator. Third party
litigation, on the other hand, typically involves cases that
are brought against entities or institutions that may have
more than adequate resources to pay for victim damages and
whose actions (or nonactions), due to the nonintentional nature
of their negligence, may be covered by insurance. Thus, additional
avenues for payment of judgments to victims may be available
from insurance companies covering negligent actions.
Causes of Action
A number of different types of civil lawsuits can be brought
by victims against perpetrators depending on the facts of
the case. Many of these lawsuits have direct linkage to criminal
charges, and others are distinct from the criminal law. Although
civil torts are not crimes, they often are closely related
and typically involve the same event. A brief overview of
major types of tort actions potentially available to victims
is listed below. Note that each area, like the other topics
discussed in this overview, requires a much more detailed
understanding than is available in this brief treatment. It
is always important for the victim advocate to refer victims
to competent legal counsel in the jurisdiction where the matter
will be litigated, and not to second-guess or otherwise judge
the merits of a lawsuit.
WRONGFUL DEATH
In the case of a criminal homicide, a wrongful death suit
may potentially be brought in civil court. A wrongful death
suit is a civil action that is brought when one person has
killed another person and there is no excuse or other justification
for this killing. For example, the law allows us to defend
ourselves against the genuine threat of being killed. Therefore,
the defense of self-defense is often used to term a homicide
as a justifiable homicide.
ASSAULT AND BATTERY
Assault and battery are two torts which, although historically
separate and distinct actions, have been merged into one civil
action in many jurisdictions. Traditionally, the civil action
of assault is when a perpetrator has intentionally put a victim
in fear of being battered. It is important to note that this
fear must be real, based on the apparent ability of the perpetrator
to commit the battery. The companion tort, called battery,
is an intentional, offensive, nonconsensual touching of the
victim by the perpetrator. This touching is usually in the
form of a severe injury.
EMOTIONAL DISTRESS
Claims for emotional distress are often brought by victims
against their perpetrators. It is important to note that the
emotional distress claim is one that is distinct from the
underlying claim of, for example, assault and battery. This
is important because emotional distress claims often have
longer statutes of limitations during which time a lawsuit
may be brought. This means that if a victim had an underlying
lawsuit based upon being battered, but that time frame has
passed, he or she may still be able to bring an action for
the emotional distress that was the result of that underlying
battery. Emotional distress may be either intentional or negligent.
Intentional infliction of emotional distress occurs when the
perpetrator has intentionally caused psychological harm to
the victim. Often, the actions of the perpetrator must be
considered extreme or outrageous and sometimes are described
as "outside the bounds of common decency in normal society."
The negligent infliction of emotional distress occurs under
similar facts but there was no actual intention to cause the
emotional distress; rather it was caused out of the negligence
of the perpetrator.
OTHER CAUSES OF ACTION
There are several other theories of personal injury that
are sometimes available to victims of crime. These include
theories of parental liability where parents may be held civilly
responsible for the injuries caused by their children. Negligent
entrustment is when one person allows another to use some
dangerous instrument when he or she should have known that
the other person might cause an injury, and injury does befall
the victim. Finally, civil conspiracy (also known as aiding
and abetting) is a tort that is recognized in some jurisdictions.
This is a situation in which persons other than the individual
who actually committed the crime so substantially contributed
to the perpetrator's ability to commit the crime that they
should also be held somehow responsible for assisting the
actual perpetrator.
CIVIL ACTIONS INVOLVING CHILDREN AND WOMEN
More recently, due to the increased attention paid to particular
forms of victimization, as well as new federal and state legislation,
lawsuits particularly tailored for special victim populations
have emerged. It is important to note that, as Carrington
and Rapp point out, "victimization" itself is not
a new tort, as such (Carrington and Rapp 1989). The civil
cases being brought on behalf of victims and, in particular,
women victims, are typically based on a number of well recognized
civil causes of action. Crimes against children and, particularly,
sexual abuse, are now regularly pursued within the civil justice
system. This is increasingly true because of statutory extensions
in the limitations on time that are allowed in these lawsuits.
Examples of how traditional tort concepts can be applied
to special victim population cases are evident with child
victims. When sexual abuse has occurred, a civil complaint
may allege numerous personal injuries. These may include the
underlying assaults and batteries, false imprisonments, wantonness
or recklessness, and other torts. Also, as emotional and psychological
damages are typically evident in child abuse cases, emotional
distress claims are extremely appropriate and common.
Crucial aspects of a child's emotional distress claim involve
a presumption, by the court, of the severity of the event
and the fact that most courts will not give much credence
to typical defenses such as consent or assumption of the risk.
Moreover, due to the young age of the child and the long life
span anticipated for a young person, economic damages can
be very high.
In addition, issues surrounding the loss of enjoyment of
life (such as the lack of the ability to trust, lack of the
ability to form meaningful relationships, lack of the enjoyment
of childhood, and other similar claims) can be added to more
easily determined claims such as the loss of employability
or the results of academic failure. It is not that the underlying
legal action itself is different from other civil lawsuits,
but new territories now being explored by civil courts in
establishing damages, judgments, and awards for child victims
are stretching the traditional views of courts to new boundaries.
Crimes against women are also increasingly handled through
the civil courts. As the public recognition of domestic violence,
sexual assault, and sexual harassment become better understood
and recognized, victims are finding greater justice in civil
courts. Also, courts have become more familiar with the psychological
impact of crime, and look to psychiatric diagnoses such as
posttraumatic stress disorder, and other recognized syndromes
such as rape trauma syndrome or battered women syndrome, to
articulate the injuries suffered by victims of these crimes.
THE VIOLENCE AGAINST WOMEN ACT'S IMPACT ON CIVIL REMEDIES
The 1994 Violence Against Women Act's (VAWA) provisions authorizing
federal suits for civil damages resulting from gender-based
injuries have ended numerous such suits over the past two
years. For example: In Doe v. Doe (929 F. Supp. 608 (D. Conn.
1996)) this civil remedy was upheld by a U.S. District Court
in a case brought by a wife against her abusive husband. Although
there are still many areas under VAWA that need to be established,
many more cases and decisions favorable to victims under VAWA
can be expected in the years to come. (See also Goldscheid,
Coukos, and Zorza 1996.) An excellent compilation and discussion
of cases, pleadings, and related information in the area of
VAWA actions can be found in Frazee, Noel, and Brenneke (1997).
Statute of Limitations
It is very important to keep in mind that although the victim
may have a valid case to bring against a perpetrator, it must
be brought within strict time limits established by law. Although
each state varies as to its statutes of limitations for various
legal actions, all states employ these statutes. Once a statute
of limitations has run, it is virtually impossible, unless
there are exceptions recognized under the law, to bring a
lawsuit that otherwise might have been brought within the
statutory time limit.
Most statutes of limitations are expressed in absolute years.
For example, it is typical for personal injury actions to
have two or three year statutes of limitations.
Statutes of limitations typically begin to run from the point
in time when the act occurs, but certain events can delay
or extend a statute of limitations, which is called "tolling
the statute."
The underlying purpose of statutes of limitations is to prevent
stale cases from being brought to court and thereby denying
a defendant, either criminal or civil, from being able to
defend himself/herself due to the lack of exculpatory evidence
or the fading memory of witnesses and similar reasons.
However, defendants are not allowed to deliberately conceal
their actions and thereby avoid prosecution of a case due
to the running of a statute of limitations. That is why most
statutes of limitations schemes allow for the tolling of the
statute during periods where the defendant, for example, has
perpetrated a fraud against the plaintiff or committed some
other acts to conceal the crime from the plaintiff.
Extending statutes of limitations for adult survivors of
childhood abuse. One particular area where there has been
much recent action extending statutes of limitations is child
sexual abuse. Many states now extend statutes for bringing
civil actions against abusers until many years after the child
has reached the age of majority. For example, Connecticut
has established one of the lengthier statutes which is seventeen
years past the age of majority, or age thirty-five years.
These actions are allowed regardless of the victim's reason
for not bringing the action earlier.
Extensions and delayed discovery approaches. There are generally
two types of cases where a victim may have delayed bringing
a civil action.
The victim has lost or repressed his or her memory of the
abusive events. At a later point, these memories may be recovered
in therapy or spontaneously.
The victim always had his or her memory of the events, but
did not begin the action for any number of other reasons.
Reasons for not bringing an action during a period when the
memory of the abuse is recalled might include: continued threats
or intimidation perpetrated by the offender; or the victim
may not have understood the connection between the abusive
acts and the difficulties he or she is currently experiencing.
Regardless of the reasons, these victims always had access
to all or most of their memories of the events. Therefore,
the absolute extension of time allows for a date certain within
which victims may bring their cases. Victims do not need to
prove any particular issue, such as a lost and recovered memory,
to begin a suit that is within the prescribed statute of limitations.
A few states require victims to bring an action within a
certain number of years, usually two or three, after they
have recovered their memory. This action is allowed within
this time period regardless of what point in life these memories
are recovered. In a delayed discovery jurisdiction, there
is typically no absolute age limitation as the tolling of
the statute relates to the period of memory loss or repression.
Therefore, someone who is seventy years old and recovers a
memory of past abuse presumably would be allowed the two-
or three-year period within which to bring a suit if all other
requirements were met.
Extending "statutes of limitations" in civil suits
for adult survivors of child sexual abuse has become a great
aide to victims pursuing these matters. Significantly, a 1977
Connecticut case indicates that the state's statute of limitations
statute is not affected by the death of the alleged abuser.
The Trial Court indicated that bringing such a civil action
against the estate of the deceased does not violate Constitutional
"equal protection" rights (Moen v. Baransky).
Defenses
Whenever a victim brings a legal action claiming one of the
injuries described here, the defendant will be able to respond
and often provides a defense or an excuse for critical actions.
One defense, as discussed above, is that the statute of limitations
has passed. This is called a "complete defense."
It is often possible to stop victims from pursuing their cases
any further if the statute of limitations has run.
Another defense is that of provocation or the victim somehow
provoked the defendant into action. Defendants may claim that
they were involved in self-defense or the defense of others
by saying their actions were justified in that they were only
reacting to a threat against themselves or someone else. Victims
may also be accused of having consented to the act or having
enough knowledge that they assumed the risks that were apparent
by consenting to the act. This basically means that the victim
is being accused of knowingly exposing themselves to the harm
that ultimately injured them. Although one cannot consent
to everything, e.g., murder, consent (if proven) can help
the defendant defeat the victim's case.
Finally, victims may be accused of contributing to their
own injuries. This defense in some jurisdictions is used to
completely defeat the victim's case (contributory negligence)
and in other jurisdictions it may be used to reduce the amount
of money that the victim may be able to recover (comparative
negligence).
Proving Damages
In addition to demonstrating the liability of one or more
defendants, the victim must also prove his or her extent of
harm or injury to support an award of damages. Damages may
be sought for a variety of victim injuries. The most basic
of these are physical injuries that require medical intervention.
It is often easy for medical bills to be produced and to have
these included in a judgment for damages.
In addition, when there is physical injury, often a physician
can indicate a specific permanent partial disability, or narrow
range of disability, so that a jury or court may estimate
more accurately what effect this will have on the person's
life, thereby allowing a particular damage award. Often issues
such as the potential for future medical treatment and the
costs of these treatments are figured into such damage awards.
In other victim cases, however, some less tangible damage
theories may be applied. Similar to the costs of past and
future medical treatment, the costs of past and future mental
health therapy may be estimated relatively easily. However,
it is often extremely difficult to state with any specificity
what the percentage of partial disability for emotional or
psychological damage should be. A competent and experienced
expert must be engaged to testify on these matters.
Critical Role of Victim Services Providers
How does one determine issues such as the loss of childhood
or adolescence? How are these issues quantified in any way
that will make sense in the objective view of the court? This
raises the very complex issue of how one can determine whether
a loss of academic, professional, or personal potential has
occurred. How can one prove that there was a potential when
it was never realized? These are all issues that place the
victim service provider, and particularly the allied mental
health professionals, in a critical role within the civil
justice system. Often, courts look to mental health service
providers for treatment recommendations and evaluations of
disability to provide guidance in determining a value that
can be placed on the victim's injuries for the purpose of
awarding damages.
Judgments
At the conclusion of a civil lawsuit, a verdict or decision
is reached by the jury.
If that decision is a "verdict for the defendant,"
then the plaintiff/victim has lost his or her case and is
not allowed to recover for injuries against the defendant.
If the result is a "verdict for the plaintiff,"
then the plaintiff/victim has won the lawsuit.
Juries are then requested to move to the next decision--the
awarding of a particular sum to compensate the victim for
his or her injuries. This is typically referred to as a "judgment."
COLLECTION OF DAMAGES AWARDED
It is important to note that in a typical victim case, reaching
the conclusion of trial and having a judgment rendered for
the victim/plaintiff is often only the beginning of the struggle
in recovering damages. First, verdicts and judgments may be
appealed. A defendant who has lost can seek to have a judgment
overturned, lowered, or set aside because the jury or the
court failed to follow some legal procedure, or the result
of the lawsuit is inconsistent with the prevailing law in
a particular state. Therefore, the decision of this trial-level
court may be brought up before an appellate court to render
a decision as to the validity of the underlying decision,
and even if the verdict itself is not attacked, the amount
of the judgment may be appealed. Often, defendants seek to
lower the amounts of money awarded by juries who they feel
were overly zealous in awarding damages to the victim.
Assuming the judgment withstands any appeals or other challenges,
then a collection of that judgment must commence. Depending
on the defendant, this process involves several potential
options.
Searching for assets. If a defendant is sufficiently monied
so as to be able to pay a judgment and chooses to do so, the
collection of that judgment may be similarly swift. Typically,
this does not happen in victim cases. Potential assets include
the following:
Real property (i.e., a home).
Other property (such as jewelry, motor vehicles, artwork,
or other valuable holdings).
Other assets such as financial holdings, interests in real
estate, corporations, or partnerships.
Other income earned by or owed to the perpetrator.
Additionally, most states allow some method by which income
earned or expected by the perpetrator can be garnished. Many
times a victim will wait until the perpetrator has accumulated
some assets to attempt to execute the judgment. Defendants
may win lotteries, receive inheritances, or come into other
windfalls that can open them to judgment execution. However,
attorneys representing victims know that these are the exception,
and not the rule, and typically the collections process can
be a somewhat complex endeavor. This is particularly true
with defendants who may attempt to fraudulently transfer their
property or other interests to individuals who help them shield
their assets from collection actions brought by victims. Nevertheless,
a diligent collections process often results in obtaining
money to fulfill some, most, or all of the judgment rendered
by the court.
Insurance issues in brief. It is very useful for attorneys
to look to the possibility of insurance coverage in victims'
cases. Note, however, that the likelihood of recovery in first
party lawsuits is significantly tempered by underlying public
policy regarding insurance. Essentially, insurance policies
do not cover intentional wrongdoing. This is based on long-standing
public policy. It is fundamental to our society's well-being
that wrongdoing not be encouraged by having the judgments
of intentional wrongdoers paid by insurance.
Counterbalancing these insurance policy exclusions are various
exceptions to exclusion that are found in insurance contracts
or are being carved out by creative attorneys. The types of
exceptions to the intentional acts exclusions that are being
developed by courts include those where the perpetrator was
unable to or otherwise did not form the intent to commit the
act.
For example, if someone of diminished mental capacity were
to commit an act, and it was determined that he or she was
unable to truly form the intent to commit these wrongs, then
coverage might be allowed.
Negligence is insurable. Third party suits brought against
negligent defendants, who are not the actual perpetrators,
allow for a much greater possibility for coverage by insurance
policies. In the case of negligence, no intentional acts are
committed by these third party defendants. As stated above,
the hotel chain did not actually commit the assault; however,
its knowledge of the high potential of assaults due to past
criminal activities, and its failure to increase security
to prevent these acts while assuring guests that protection
was available to them, results in the determination of negligence.
Three types of insurance are most commonly involved in crime
victim cases:
Automobile insurance.
Commercial insurance.
Homeowner's insurance policies.
Automobile insurance policies cover acts that "arise
out of the use, operation, or maintenance of the motor vehicle."
An obvious example would be a case where a drunk driver crashes
into the victim, causing death or serious injury. These acts
are considered within the scope of coverage of an automobile
insurance policy.
Some difficult determinations involving automobile policies
arise when the wrongful act is one that is not normally considered
to arise out of a typical use, operation, or maintenance of
a car. For example, if a drive-by shooting were to occur,
should the automobile insurance policy be implicated? Courts
differ in their interpretation of this, most finding that
the motor vehicle is not actually an instrument of the drive-by
shooting, and that the automobile policy will not be implicated.
Commercial insurance policies, similar to homeowner's (or
renter's) insurance polices, provide liability coverage for
events that occur on particular premises. These insurance
polices tend to be broad and cover a number of different types
of injuries or accidents. Moreover, coverage may not be limited
to events that occur only at these locations. For instance,
commercial policies may provide coverage for acts that are
committed by employees outside the place of business, e.g.,
at a conference or seminar sponsored and/or conducted by the
employer. Similarly, acts that are committed by the homeowner
under certain circumstances may be covered, even when the
homeowner is not actually on his or her property.
Retribution Against Victims
A disturbing trend in victim's civil litigation cases involves
legal retributions brought against the victim by the perpetrator.
These may be brought in the form of separate lawsuits or counterclaims
within the victim's own lawsuit.
Typical counterclaims against the victim include the following:
Defamation, liable, and slander.
Invasion of the defendant's privacy.
Conspiracy or fraud against the defendant.
Extortion claims against the defendant.
Claim that the victim's action has caused emotional distress
to the defendant.
One additional avenue always available to defendants is to
claim that the lawsuit was merely brought for vexatious purposes.
A vexatious lawsuit is one that the defendant alleges was
otherwise groundless and brought only to needlessly harm the
defendant in an unwarranted or improper way. This is an area
that deserves considerable attention from victims and their
advocates. Also, there is a growing trend toward lawsuits
against mental health service providers. These lawsuits most
typically involve allegations that the provider implanted
false memories in the mind of a victim.
Other Cautions for Victims
Although victim litigation often provides excellent opportunities
for victims to find remedies against perpetrators, it is not
an easy road. Civil litigation is a complex and difficult
process. Victims can often be victimized once again in the
civil process, despite the fact that they possess more control.
Victim cases can also be very expensive to pursue.
Victims must be aware of the fact that they are ultimately
responsible for the costs of litigation under most legal ethics
rules and, if they lose their cases, they can be held responsible
for the defendant's costs as well. As noted above, the discovery
period is often the most difficult for victims. Victims must,
once again, reveal very personal information about themselves
and allow themselves to be probed and cross-examined by the
perpetrator's attorney. This can be a very disturbing experience
for victims who have, in many cases, recently or simultaneously
endured the indignities of the criminal justice system. Although
victims should not be overly cautious of litigation, victims
and advocates must have a realistic view of the civil justice
system prior to commencing such actions.
Recommendations for Victims and Advocates
In May 1998, the Office for Victims of Crime within the U.S.
Department of Justice released a significant study, New Directions
from the Field: Victims' Rights and Services for the 21st
Century, developed by leaders in the victims' field. It contains
recommendations for the improvement of crime victims' rights
and services. Key recommendations regarding civil remedies
from this report are as follows:
Crime victims should be fully informed of their legal rights
to pursue civil litigation.
State and local networks of civil attorneys who have experience
representing crime victims should be expanded. Education and
training on civil litigation should be offered to attorneys
to increase the pool of qualified lawyers in these networks
and to maintain the level of expertise among member attorneys.
Nonattorney experts and professionals should participate in
these trainings and networks to educate attorneys so that
they represent victim issues more effectively.
Increased efforts should be made to identify consultants with
the expertise to testify on issues relevant to victimization
in civil and criminal cases.
Civil attorneys should work with victim service providers,
law enforcement officials, and prosecutors in their communities
to develop an easy-to-understand pamphlet about civil remedies
for crime victims.
Civil attorneys should provide training to victim service
providers on civil remedies for crime victims.
Statutes of limitations for civil actions involving child
abuse cases should be extended, as has been done in a number
of states. States should also examine statutes of limitations
for civil actions relating to other criminal acts to determine
whether they should be extended to provide a meaningful opportunity
for crime victims to obtain needed relief.
Civil Remedies Self-Examination
--------------------------------------------------------------------------------
1. Identify and describe three major differences between civil
litigation and criminal prosecution.
2. Name and define three legal causes of action used by victims.
3. What are civil statutes of limitations? Discuss statute
of limitations innovations applied to adult survivors of childhood
abuse cases.
4. Discuss the pros and cons of victim litigation.
Civil Remedies Glossary
--------------------------------------------------------------------------------
Aiding and Abetting. Similar to civil conspiracy, when someone,
not the actual perpetrator, so significantly contributes to
the criminal operation as to be considered liable for their
actions.
Abscond. To go in a secretive manner out of the jurisdiction
of the courts, or to lie concealed, in order to avoid their
process.
Answer. Formal written responses to the defendants/perpetrators
file in response to plaintiff's complaints. These pleadings
may deny some or all of the allegations; they may raise defenses
such as self-defense or assumption of risk, or they may allege
that even if all of the plaintiff's allegations are true,
there is no liability. These pleadings are usually accompanied
by legal memoranda and briefs. The names of the pleadings
vary from jurisdiction. "Demurrers," "motions
for summary judgment," motions to dismiss," and
"answers" are all descriptions of a responsive pleading.
Assault. A cause of action for intentionally putting the
victim in fear of a battery, coupled with the apparent ability
to commit the battery.
Assumption of Risk. A legal doctrine that may relieve perpetrators
of liability for injuries to victims if the victim voluntarily
entered into a situation knowing that there was a risk of
foreseeable injury.
Automobile Insurance. Insurance policies that cover injuries
"arising out of the use, operation, or maintenance"
of the vehicle.
Battery. The intentional, offensive, unpermitted touching
of the victim by the perpetrator.
Burden of Proof. The threshold of evidence that one party
must present in order to prevail in his or her case. In criminal
cases, the burden of proof is very high: "beyond a reasonable
doubt," or generally 99 percent of the evidence. In civil
cases, however, the burden of proof on the victim/plaintiff
is "a mere preponderance," or more than 50 percent
of the evidence.
Causes of Action. The legal basis for a civil lawsuit.
Civil Actions. Lawsuits filed by victims to recover from
injuries sustained and damages incurred as a result of the
perpetrator's crime.
Civil Conspiracy. See Aiding and Abetting.
Collateral Estoppel. A legal doctrine which provides that,
in some cases, the criminal conviction of perpetrators will
be considered proof of those perpetrator's legal liability
in civil actions brought by the perpetrator's victims.
Collectability. A general term meaning the extent to which
defendants/perpetrators have the financial means to pay judgments
from assets on hand, assets reasonably to be expected in the
future, or financial assistance from such sources as insurance
coverage.
Comparative Negligence. The more prevalent approach to reducing
amounts paid to plaintiffs/victims allowing partially negligent
plaintiffs/victims to recover damages from defendants/perpetrators,
however, reducing the amounts of the award by the applicable
percentage of the plaintiff's/victim's own negligence (see
also: Contributory Negligence).
Compensation. Monetary reparations made to crime victims
by a state or a governmental entity to recover "out-of-pocket"
expenses incurred as a result of a crime.
Compensatory Damages. Damages paid to compensate victims
for losses caused by the torts of the perpetrator. Such losses
include out-of-pocket expenses; loss of income; expenses such
as medical bills, therapy, and funeral costs; loss of present
and future earning capacity; conscious pain and suffering;
financial support; and "consortium," the loss of
the affection and society of loved ones.
Complaint. The formal written pleading filed in a civil court
alleging that the defendant(s) injured the plaintiff(s), and
that the defendant(s) should be liable for damages caused.
Contributory Negligence. A legal doctrine, now modified in
most jurisdictions, that any negligence on the part of the
plaintiff/victim will bar civil lawsuits against defendant/
perpetrator.
Criminal Action. Cases in which the state prosecutes perpetrators
of criminal acts, committed in violation of the state's laws.
Damages. Amounts of money awarded to winning parties in civil
suits expressed in a judgment.
Defendants. Parties against whom civil actions are brought.
Defenses. Legal doctrines that relieve defendant/perpetrator
of liability for having committed a tort.
Delayed Discovery Rule. A legal doctrine that suspends the
running of statutes of limitations during periods of time
in which the victims did not discover, or by the exercise
of reasonable diligence, could not have discovered, the injuries
that would lead to their causes of action against the defendant/perpetrator.
Depositions. Pretrial proceedings in which attorneys for
parties in a civil case have the opportunity to examine, under
oath, the opposing parties and potential witnesses in the
case. Depositions are sworn and reduced to writing. The transcripts
may be admissible in evidence at trials if the witnesses are
no longer available, or for purposes of impeachment.
First Party Action. Lawsuits brought by victims directly
against their perpetrators.
General Liability Insurance. Insurance policies covering
whatever losses are enumerated in the policy.
Homeowner's Insurance. Broad-based insurance policy that
contracts to protect the insured from enumerated causes of
accidental injuries to others. The accidents usually are not
confined to acts that happen on the insured's "home"
premises but also includes accidents that happen elsewhere.
Renters of premises can obtain Renter's Insurance.
Insured. The individual who has contracted to receive insurance
coverage from the Insurer whose actions are otherwise covered
by an insurance policy.
Insurer. The business entity which has contracted to provide
insurance coverage to the insured.
Judgments. The formal recitations of the outcomes of civil
cases. They are almost always reduced to writing, and recorded
as a part of the file.
Negligence. A legal doctrine providing that one may be liable
to another if (1) he or she owes a legal duty to the other;
(2) he or she materially breaches that duty; (3) the breach
is the proximate cause of the other's injury; and (4) the
other person suffers damages.
Negligent Entrustment. A tort in which one or more persons
give, lend, or allow someone to use, or should have anticipated
that the person would use, a dangerous instrumentality to
injure another.
Parental Liability. A legal doctrine that holds parents civilly
liable for the torts and crimes of their children.
Perpetrators. Persons who have criminally injured victims.
Plaintiff. Party bringing civil actions. In the case of victim
civil remedies, the victim is the plaintiff.
Professional Liability Insurance. Insurance coverage issued
to professional persons: doctors, dentists, lawyers, architects,
etc., to cover any losses caused by malpractice in the course
of their professional services.
Provocation. A legal doctrine that may excuse defendant/perpetrator
from the consequences of his/her crime/tort if the plaintiff/victim
instigated a confrontation, or otherwise caused or provoked
the defendant's actions.
Proximate Cause. The "cause in fact" of injury
to victims; a "cause" without which the victim's
injuries would not have occurred.
Punitive Damages. Damages awarded to victims against perpetrators,
over and above compensatory damages, in order to punish or
make an example of perpetrators.
Renters Insurance. See Homeowner's Insurance.
Rescue Doctrine. A legal doctrine that allows one to recover
for injuries suffered in coming to the rescue or assistance
of others in peril. It is used as a counter to the defense
of Assumption of Risk.
Restitution. Court action that requires perpetrators to make
financial payments to their victims, usually as a condition
of probation or leniency in sentencing.
Self Defense. The legal doctrine which relieves defendants/perpetrators
of liability for torts if they acted in the reasonable belief
that they had to use force to defend themselves, or others
(loved ones, etc.), from death or great bodily harm.
Settlements. Agreements among the parties to lawsuits to
end the suits without trial; usually the plaintiff agrees
to drop the lawsuit for a fixed sum of monetary damages paid
by the defendant.
Statute of Limitations. Periods of time, set by law, after
which civil actions cannot be brought.
Third Party Actions. Lawsuits brought against persons whose
negligence or gross negligence has facilitated the commission
of a tort by a defendant.
Tolling of Statutes of Limitations. The running of statutes
of limitations is suspended.
Torts. Civil or private wrongs (as opposed to criminal offenses)
committed by perpetrators against victims.
Uninsured or Underinsured Motorists. State law usually makes
it compulsory that drivers have enough insurance to cover
damages if they, or others defined in the policies, are injured
by motorists who have no insurance, or not enough insurance,
to cover injuries that they have caused.
Victims. Persons who have been injured by the criminal acts
of perpetrators.
Wrongful Death. The civil action for the killing of one human
by another, without justification or excuse.
Ï»¿New York City New York Class Action Lawyer WORLD LISTINGS
Class Action Lawsuits Fraud
Class action lawyers and attorneys for fraud.
If you desire information on this subject
then you have come to the right place for news and links
on New York City New York class action lawyer and New York City New York class action lawyer
alerts. Our Class action lawyers and attorneys for fraud. resources are
key to understanding New York City New York class action lawyer. Thank
you very much for visiting our site about New York City New York class action lawyer
New York City New York class action lawyer and New York City New York class action lawyer Class action lawyers and attorneys for fraud.