Initiating a Civil Lawsuit

Finding an Attorney

Fees

The Initial Consultation

Other Responsible Parties

Evaluating the Case

The Relationship Between Civil Lawsuits
and Criminal Prosecutions

Finding an Attorney

An experienced, competent attorney and a compatible attorney-client relationship are critical to the success of any lawsuit. The attorney and client must be able to communicate fully and effectively with each other. Attorneys should be able to clearly explain the legal proceedings to victims, be responsive to victims’ concerns, and clearly describe the services they will provide and the fees. Crime victims should look for an attorney with expertise in handling these types of cases. Some civil attorneys have extensive previous experience as criminal prosecutors, which can be very helpful if there is also a criminal prosecution.

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Fees

Usually, attorneys take civil cases brought by crime victims on a contingency fee basis. The attorney only receives a fee if the victim is awarded a financial settlement or judgment. The fee is a percentage of the total award agreed upon by the attorney and the victim in advance.

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The Initial Consultation

When crime victims consult an attorney, they should bring any relevant documents and be prepared to answer questions about the following topics that will allow the attorney to thoroughly evaluate the case:

• The crime, including the date, time, location and description of the event, names of witnesses and any known physical evidence, information about any response by police, and information about any criminal prosecution brought as a result of the crime.



• The offender, if known, including his name and address, employment information and any financial assets he may have (e.g., earnings, savings, insurance, property owned), and the relationship of the victim to the offender.



• Damages. The lawyer will ask about the victim’s physical, emotional and psychological injuries, property loss or damage, lost wages, and any other losses as a result of the crime.



• Third Parties. The lawyer will ask questions to determine whether anyone else might be legally responsible for the victim’s losses, such as the owner of the property where the crime occurred or the offender’s employer.

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Other Responsible Parties

Sometimes, third parties can be sued for things they did or did not do that allowed a crime to happen. For example, a woman who is attacked in her apartment may sue the owner if poor building security contributed to the commission of the crime. Many people are familiar with the cases of victims sexually abused by priests. In these cases, victims pursue not only the priest, but also administrators in the Church who may have transferred the offending priest to a new parish without warning anyone. An important part of the initial evaluation of the case is determining who is legally responsible for the victim’s injuries and whether they have the ability to pay financial damages.

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Evaluating the Case

Following the initial consultation, the lawyer will give the victim her opinion about the case and advice about the best course of action. The lawyer and the victim must together weigh the following factors in evaluating the case:

• Likelihood of success of legal claims.
  
  
• Likelihood of recovery. To be viable, civil actions require the availability of assets or insurance to pay for the victim’s damages. A case is usually financially viable if there is a third party who is partly responsible and insured or otherwise able to pay a financial settlement. When the only defendant is the actual perpetrator, locating assets is a necessary pre-condition to starting a civil action.
  
  
• Emotional impact. The lawyer and the victim must also consider the emotional impact of pursuing the case. Resolving a lawsuit can take anywhere from several months to several years. The victim and family members or friends may be called upon to testify at depositions and trials. It is important to consider and discuss the supports necessary and available to the victim during the pendency of a civil case.
  
  
• Confidentiality. In criminal prosecutions, courts are required to protect a victim’s confidentiality regarding therapy and therapy records. In civil lawsuits which seek compensation for psychological and emotional injuries, access to therapy records is essential to proving damages.

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The Relationship Between Civil Lawsuits and Criminal Prosecutions

Victims can and should consider pursuing both criminal prosecutions and civil lawsuits when possible, because each serves a different, yet equally important function. Successful criminal prosecutions result in punishment of the offender and vindication for the victim. Civil lawsuits attempt to remedy the harm done to the victim, usually through financial compensation. Whenever possible, the criminal prosecution should proceed first, because a criminal conviction can help establish liability in a civil case. Also, evidence in the custody of the police or prosecutor that may be helpful for the civil lawsuit will not be available until the conclusion of the criminal prosecution Sometimes, a civil lawsuit must be filed while the criminal prosecution is still pending to meet strict filing deadlines. For this reason, victims considering filing a civil lawsuit should consult an attorney as soon as possible after the crime.

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