A Few Thoughts on Suing the Criminal Defendant

When Kyron Horman disappeared in Portland in 2010, his stepmother, Terri Horman, came under suspicion. The investigation has not been closed, and no charges have been brought. Eventually, Kyron’s mother, Desiree Young, sued Terri, alleging involvement in Kyron’s disappearance.

The suit has been stalled. Terri obtained a series of orders taking the suit off the active docket because of the criminal investigation. A few weeks ago, the court declined to extend the orders and put the case back on the active docket, but also put a hold on depositions and document discovery. As a result, the suit is not significantly closer to resolution.

The Horman case is an unusual application of the principle that a criminal defendant is usually entitled to have the prosecution resolved before facing a civil lawsuit, mainly because of the defendant’s rights to due process in the prosecution and to prevent the defendant from being forced to answer potentially self-incriminating questions in the civil suit. In most cases, the plaintiff doesn’t mind waiting because the prosecution will end fairly quickly, and there is a good chance that a guilty plea or conviction will make it easier to prove the civil suit. Occasionally, however, a case will be extended and the plaintiff will be forced to wait a long time. Sometimes the courts will decide that the plaintiff has waited long enough and order the suit to go forward. Sometimes, they won’t.

Once the case does go forward, the plaintiff will want to watch for the result of the criminal case. This can be very important. First, most crimes either are, in themselves, torts allowing a suit, or can be used to prove a tort. For example, theft usually sets up a civil claim for “conversion” of the stolen property. Traffic infractions (whether treated as criminal or not) usually can be used to prove negligent driving. Because it is harder to prove a criminal case than a civil one, once the defendant is found guilty, he or she will usually be prohibited from disputing the facts. A conviction, therefore, will usually mean that the suit will be settled once the parties decide that each side’s prediction of the damages are in the same general range.

Of course, not all defendants are found guilty. When a prosecution is dismissed, or the defendant found not guilty, or prosecutor decides not to file charges in the first place, a lawsuit can still continue. I have several times been asked why this is so. There are two reasons. First, the plaintiff is separate from the prosecutor and isn’t blocked by the double jeopardy rule from suing the defendant. It isn’t an “offense” at that point, but a civil claim. Second, to prove a civil claim, the plaintiff only has to prove that the defendant more likely than not is at fault, or in some situations (such as fraud) that the defendant’s fault is highly probable, but not that the defendant is guilty beyond a reasonable doubt. It’s entirely possible that a jury might find that a plaintiff has proven a civil claim but wouldn’t convict under a reasonable doubt standard. That’s the reason that O.J. Simpson was successfully sued.

Another reason a plaintiff may want to wait for the criminal case to be resolved is that the defendant usually can no longer take the Fifth. The rule against self-incrimination only applies if a witness reasonably believes he or she might be prosecuted. Once the prosecution is over, that’s no longer a risk. As a result, it becomes easier to get discovery and testimony out of a defendant – and whatever he or she said in a previous trial can be used against them if the story changes. If the criminal trial transcript says that on the night of the 23rd of August, the defendant said he or she was at the scene, that defendant had better say the same thing in the civil trial or have a good explanation for the change in testimony.

Unfortunately, fairly often, a claim based on a crime will not be covered by insurance. As a result, to collect, the defendant will have to have property to collect from, or another defendant will need to be located.

When suing a criminal defendant, a little delay in the civil suit can benefit the plaintiff. Anyone contemplating a suit like this should have a frank discussion with a lawyer about the case to get an idea if the suit is likely to succeed and if a judgment is likely to be collected. The plaintiff also should decide how long he or she is willing to wait if the criminal case is not resolved quickly, and talk to the lawyer about this.


2 Responses to A Few Thoughts on Suing the Criminal Defendant

  1. moshez says:

    If the criminal trial transcript says that on the night of the 23rd of August, the defendant said he or she was at the scene, that defendant had better say the same thing in the criminal trial or have a good explanation for the change in testimony.

    I’m guessing the second usage of “criminal” should have been “civil” here? 🙂

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