18 Trial Lawyer • Winter 2022 Barb Long By Barb Long OTLA Guardian You get a phone call from a woman who has been sexually assaulted. She has reported the matter to the police and the case will be reviewed by a prosecutor soon. She is eager to see the perpetrator convicted but is also interested in exploring a potential civil case. You want to help but don’t know where to start. Do you file the civil case immediately? Do you stand back and wait for the criminal prosecution to conclude? What are some pitfalls to be avoided? Clarify the client’s goals At the risk of stating the obvious, you need to figure out what the client’s goals and priorities are before recommending a course of action. These goals are unique to each survivor and they might differ from your goals as a civil attorney. For example, does your client care more about promoting a successful criminal prosecution (i.e., possible jail time and sex offender registration for the perpetrator) or about receiving financial compensation? Does your client have the strength and patience to wait months or years for the criminal prosecution to conclude before pursuing a civil claim? Does your client just want a quick settlement? Only after you clarify these goals can you consider how best to achieve them. In doing this, help your client make an informed decision by making sure your client understands the roles of the criminal justice and civil justice systems, and what each may and may not accomplish. Explain the advantages of having representation in the criminal case, and serve in that role if you are willing. Whatever you do, try to keep yourself outside of the center of the equation by keeping your personal preferences in check. Your eagerness to file the civil case or a personal desire to see the perpetrator convicted should not override the preferences of the client. And if what the client really needs is an attorney to assert their statutory and constitutional rights as a crime victim in the criminal case, fulfill that role or refer the client to someone who can. Why not file right away? Although I understand (and often share) the urge to file the civil case right away, there are a couple reasons to consider holding off. The biggest is that you will avoid the creation of potential Brady evidence that may be used for impeachment in the criminal case trial. As most of us remember from law school, Brady v. Maryland, 373 U.S. 83 (1963) requires the prosecut i on to turn ove r any ev idence materially favorable to the defendant. Oregon codified the Brady rule in ORS 135.815(1)(g), which requires prosecutors to disclose to the defendant information that exculpates the defendant, negates or mitigates the defendant’s guilt, or, important for present purposes, impeaches a person the district attorney intends to call as a witness at trial. At least one Oregon court has acknowledged that evidence of a financial motivation by the victim is relevant to show bias. See State v. Delucia, 40 Or App 711, 715-716 (1979) (recognizing that “as a general rule cross-examination of the prosecuting witness should be allowed to show the pendency, existence, and status of a civil action against the accused arising out of the same set of circumstances.”). Guilty and Liable Maximizing a successful prosecution to develop a future civil claim
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