Drunk Drivers, Fifth Amendment and CIVIL cases: How Does the 5th work?

Posted on June 11, 2010 by Phil Chanfrau

In an earlier blog I told my readers I would occasionally discuss certain rules of evidence which I found to be interesting.  That one was about the "T"word: traffic tickets.   Today's post is about the consequences of someone in a CIVIL case asserting his/her right against self incrimination in the CIVIL case.  The person can be a party, either the Plaintiff or a Defendant or merely a witness.  If the Plaintiff asserts the FIFTH, then his case can be dismissed.Kerben v Intercontinental Bank.   Since I only represent Plaintiff's I will not take their case if they will need to assert the Fifth.  They can come back later after the Criminal case is over (in their favor) if the statute of limitations has not run out.

This  often comes up in different ways.  It can be almost any crime because there is always a victim and the victim (my client, the Plaintiff) can sue while the criminal case is still going on.  

In the context of an auto case it usually comes up when the defendant is suspected of drunk driving or is suspected of being high on marijuana or some other illegal drugs,  and charges are either pending or may be charged. If a trucker or public employee is involved in an accident a drug screen is usually done within 24 hours.  

But when the defendant asserts the FIFTH, his defense is not stricken and he is not making a claim so nothing gets dismissed.  Is he home free? Depends.

When the CIVIL case gets underway the Plaintiff's attorney will schedule the person with charges pending against them (the allegedly drunk driver)  for deposition and ask whether he was either drunk or using illegal drugs when the crash happened. The defendant then usually asserts his/her Fifth Amendment right against self incrimination.  He will assert his fifth amendment privilege and refuse to answer.   Once the  CIVIL case goes to trial, the Plaintiff's attorney (me)  is allowed to tell the jury about the fact that the defendant asserted his fifth amendment privilege..  Juries do not like that. It is very incriminating and looks terrible. (The State Attorney is not allowed to comment on assertion of the Fifth Amendment privilege in a criminal case.)

Why would the Plaintiff's attorney want to bring out in a CIVIL case that the Defendant asserted his Fifth Amendment privilege?  Because, in a CIVIL case a jury can draw an inference  from the silence of the Defendant that he was negligent and his silence can be used against him.  Also, it makes the defendant look lousy. That is what happened in Fraser v Security and Inv.Corp.

Now, many defense attorneys know how bad it makes their clients look when a CIVIL jury hears their Client took the 5th.  It is basically fatal to the defense.  So what do they do?  They will ask for a Court Order abating (staying) all of the CIVIL proceedings for some definite time until after the CRIMINAL case is finished.  This shields their lilly-white clients from being embarrassed by asserting the Fifth and it being brought up by me in front of the jury in the CIVIL trial later on . The criminal case may take years and of course, that's perfectly okay with them.  That is exactly what happened in Kerben, supra.

So, a DEFENDANT can avoid looking bad if his attorney gets a court order protecting him from having to give his deposition until his Criminal case is over.  

But what about a witness?  Can a witness also get a court order and make a plaintiff or defendant  wait?  No.  The court in the Kerben case says no.

The point of all this is that it is one thing to have an attorney on your side.  It is quite another to have one who knows the rules of law and knows how to use them to your advantage.   After years of trying cases and researching the law, I love to make the law work for my clients.

 

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Keeping Stuff out of Trials: Dirty Tricks

Posted on February 8, 2010 by Phil Chanfrau

There is a lot of stuff that doesn't come up at a well tried case.  The court depends on trial attorneys to give it a heads up on such things, and knows there is a lot of dirty laundry out there.  As a matter of fact everyone has some.  It's not surprising then, that the opposition will hang it out to dry in front of the jury if it can. How does an attorney prevent the dirty laundry from coming up at trial?  By getting the Court to enter an Order granting a Motion in Limine. The motion needs to be tailor made to each case.

Trial attorneys use a standard motion which has lots of categories of things they don't want the Defense to bring up during trial. Here is a list of a few things that are typical in a motion in limine I don't want the Jury to hear about:

  • That there has been a settlement with a prior defendant.  This is the classic empty chair problem.  The Court should prohibit any mention or suggestion of such settlements, or the receipt of such funds by Plaintiff, and should prohibit any evidence of same, pursuant to Section 768.041(3), Florida Statutes. See Leisure Group, Inc. v. Wiliams, 351 So. 2d 374 (Fla. 2d DCA 1977), Madden v. Rodovich, 367 So. 2d 1083 (Fla. 4th DCA 1979), Black v. Montgomery Elevator Co., 581 So. 2d 624 (Fla. 5th DCA 1991), Samick Corp. v. Jackson, 645 So. 2d 1095 (4th DCA 1994).
  • Receipt of Welfare, Social Security or Disability Benefits. This is the one that makes jurors think the Plaintiff is a deadbeat if he is on welfare.  Florida law prohibits the admission into evidence of the fact that a party is receiving Social Security Disability benefits, Winston Towers 100 Association, Inc. v. DeCarlo, 481 So. 2d 1261 (Fla. 3d DCA 1986).
  • Medicare Benefits.  This one is self explanatory.  Since Plaintiff has through his payroll deductions earned Medicare benefits, they are not collateral sources and Plaintiff's right to such should not be mentioned in the presence of the jury. Winston Towers One Hundred Assn. v. De Carlo, 481 So. 2d 1261 (Fla. 3rd DCA 1986).
  • Worker's Compensation.   Jurors do not want to allow the plaintiff to double dip.  Since worker's comp companies get a lot of their money back after a verdict, it is improper to allow statements of payments received from Worker's Compensation as a collateral source into evidence, as such compensation should be excluded as prejudicial and in violation of Florida Statute §672.7372(3), Kreitz v. Thomas, 422 So. 2d 1051 (4 DCA Fla. 1982).
  • Prior Claims/Lawsuits.   This one argues the plaintiff is suit crazy.  If the defense attempts to show the prior claims in order to argue Plaintiff is likely to sue every time he gets the opportunity, i.e. that he is a litigious person, that is wholly improper as an impermissible attack on the plaintiff's character. The law will not allow one to argue the exercise of a right is evidence of a wrong. Zabner v. Howard Johnsons, 227 So. 2d 543 (Fla. 4th DCA 1969), Colvin v. Williams, 564 So. 2d 1249 (Fla. 4th DCA 1990).
  • Traffic Tickets. As I wrote about in a previous blog, the Defendant and witnesses called on their behalf or their attorneys of record, should be ordered not to disclose or mention in the presence of the jury, any evidence as to the issuance of traffic citations or lack thereof. Elsass v. Hankey, 662 So. 2d 392 (Fla. 5th DCA 1995).
  • Collateral Sources. Sometimes insurance companies pay medical bills and get  a lien on the recovery if there is one.  If the jury hears that insurance paid, they will usually refuse to give money for the bills because they do not want to allow double recovery.  But if the plaintiff has to pay the insurance back, it is not double recovery.  So an order should be entered so that  when the Plaintiff has received collateral sources of insurance benefits as that term is defined by F.S. §768.76(2)(a) for which insurers have retained the right of subrogation. the jury is not told of the lien and payment.
  • Secondary Gain.  The opinion of  an ordinary doctor that the Plaintiff has "law suit" pain, or is faking his pain in order to get a settlement should not be allowed. In Mills v. Red Wing Carriers, Inc., 127 So.2d 453, the Florida Second District said:

"The opinion of an expert should be excluded where the facts testified to are of a kind that do not require any special knowledge or experience in order to form a conclusion, or are of such character that they may be presumed to be within the common experience of all men moving in ordinary walks of life." Mills, page 456.

Having a trial attorney to stand by you at trial is one thing.  Having one that knows how to keep out irrelevant and damaging evidence is priceless.

 

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