Plaintiffs frequently tell their attorneys that what the defendant has done is criminal.
While such statements are merely hyperbole in most civil litigation, there are a surprising number of civil cases that include genuine criminal issues with all of the attendant procedural and substantive issues. Civil cases with criminal liability present issues for the plaintiff and defendant alike – but, with some forethought, it is possible to navigate those issues to your client’s benefit.
For the defendant’s counsel, there are a number of serious problems if civil proceedings and criminal proceedings are allowed to move forward at the same time. The broader discovery allowed on the civil side has the tendency to implicate issues relating to self-incrimination for a defendant simultaneously defending against a criminal proceedings. As a result, many courts have recognized the broad discretion of the courts to stay the civil proceedings during the pendency of parallel criminal proceedings. However, motions to stay can be very difficult to win and are highly fact specific. Among other things, courts must consider the amount of overlap between the cases, the status of the criminal proceeding, and the public interest in the outcome of both cases. The defendant’s ability to prevail on a motion to stay is even more challenging when the scope and status of the criminal proceedings are preliminary and uncertain. These are tough motions for a defendant to win, but the defendant’s counsel ought to consider a stay.
When engaged in discovery in a case with potential criminal conduct, plaintiff’s attorneys should be aware that it is nearly inevitable that the defendant will attempt to invoke the Fifth Amendment. Some defense attorneys advise their clients to refuse to answer any questions whatsoever, even when there is only a whiff of criminal accusations.