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By Justin Effres
Personal injury lawyers occasionally handle cases that are not purely civil matters. The same conduct that gives rise to a tort claim may also lead to criminal prosecution—for example, when a drunk driver causes a fatal crash or a reckless driver flees the scene, often because they were driving under the influence.
When that happens, two proceedings move forward at the same time. Although both arise from the same facts and share similar goals, such as deterring bad conduct and compensating victims, they operate under different rules and timelines. From the plaintiff’s perspective, that overlap can create both challenges and opportunities.
Over the years I have handled many cases where the defendants faced criminal charges while we pursued civil claims on behalf of injured clients or surviving family members. Three recurring issues tend to arise. The first is whether the criminal prosecution will delay the civil case. The second is how the criminal case may affect the outcome of the civil litigation. The third, which sometimes involves collaboration between civil lawyers and criminal prosecutors, is criminal restitution.
The Motion to Stay
One of the first things that often happens in these cases is a motion by the defense asking the court to stay the civil proceedings while the criminal case is pending. The argument is usually framed in terms of fairness. The defendant, the defense argues, cannot defend the civil case without risking self-incrimination. According to that reasoning, the civil case should simply wait until the criminal matter is resolved.
From the plaintiff’s side, that request can be problematic. Criminal cases sometimes take years to resolve. During that time witness memories fade, evidence becomes harder to obtain, and plaintiffs could face significant delays in obtaining compensation.
My firm recently encountered this issue in a wrongful death case caused by an impaired driver. That driver was facing criminal charges, and shortly after the civil case began the defense moved to stay discovery until the criminal prosecution concluded. Their position was that because the defendant intended to invoke the Fifth Amendment privilege against self-incrimination, discovery could not meaningfully proceed.
The court declined to stay the case. In denying the motion, the court explained that the existence of a criminal prosecution does not automatically halt civil litigation. Courts must balance several competing interests, including the plaintiff’s need to move the case forward, the burden on the defendant, and the risk that delay may prejudice the civil case.
In that particular matter, delay carried additional risks. One of the plaintiffs was elderly and in declining health, and postponing the civil case until the criminal proceedings ended could have meant the case would never reach trial during her lifetime. The court therefore allowed the civil case to proceed, with the understanding that the defendant could invoke the Fifth Amendment where appropriate on a question-by-question basis.
That ruling proved important once discovery responses were served. Instead of providing substantive responses, the defendant asserted blanket Fifth Amendment objections to every interrogatory and document request. The responses consisted of identical objections invoking the privilege without identifying how any specific question posed a risk of self-incrimination. This forced us to file motions to compel.
The court agreed that the blanket objections were improper. While the Fifth Amendment may justify refusing to answer particular questions that genuinely present a risk of self-incrimination, it does not permit a defendant to refuse participation in discovery altogether. The court ordered further responses and imposed monetary sanctions after finding that the blanket objections were not justified.
The case ultimately settled for the commercial auto policy limits after we were able to take meaningful depositions of the defendant and other defense witnesses. Those depositions produced evidence showing that the impaired driver—who was operating a personal vehicle—was returning from a business errand at the time of the crash.
The Criminal Case as Evidence
Clients often assume that if the defendant is prosecuted criminally, the civil case will essentially take care of itself. Sometimes the defense in the civil case admits liability in an effort to render the most damaging facts irrelevant. If negligence is no longer disputed, evidence that the defendant was intoxicated or fled the scene may no longer be relevant to the issues the jury must decide.
However, that decision may not be made until the eve of trial. Until then, the plaintiff must still prepare to prove liability and damages as if the case will be fully contested.
A criminal conviction can certainly be powerful evidence in a civil action arising from the same conduct. A guilty plea may also serve as an admission that can be used in the civil case. A plea of no contest (nolo contendere), however, may or may not be used as an admission of liability in subsequent civil litigation, depending on the charges and circumstances under California law.
Even when the criminal case produces useful admissions or findings, the civil case still requires its own proof. Liability must be established under civil standards, and damages must be proven. Nevertheless, criminal proceedings often generate valuable evidence—such as police reports, witness statements, and investigative findings—that can assist in developing the civil case.
The Restitution Opportunity
One aspect of parallel proceedings that civil lawyers sometimes overlook is the possibility of restitution in the criminal case. The purpose of restitution in the criminal case is to ensure that crime victims are reimbursed for the economic harm they have suffered.
This issue arose in a recent case involving a devastating multi-vehicle freeway collision that killed a young woman who was pregnant with her first child. Several vehicles were involved in the crash, and multiple insurance carriers ultimately contributed their policy limits to resolve the civil wrongful death claims.
As often happens in catastrophic cases, the available insurance coverage was limited relative to the magnitude of the loss. The victim’s father retained our firm on a contingency fee basis to pursue the civil claims, and he and the victim’s mother ultimately split the policy-limit settlement proceeds.
When the criminal case reached sentencing, we worked with the prosecutor to ask the court to order the defendant to reimburse our client for the contingency attorney’s fee he paid as restitution. California’s restitution statute requires courts to compensate victims for economic losses caused by criminal conduct, including actual and reasonable attorney’s fees incurred in recovering damages.
The victim’s father had incurred attorney’s fees in order to obtain compensation for the harm caused by the defendant’s conduct. Those fees represented a real financial loss directly tied to the underlying crime. The fact that the representation was on a contingency basis, and that much of the recovery involved noneconomic damages, did not change the reality that the victim had paid reasonable and necessary attorney’s fees out of his recovery, constituting an economic loss recoverable through criminal restitution.
When negotiating the civil settlement agreement, we anticipated that restitution might later be sought in the criminal case. We negotiated language that expressly preserved the right to pursue restitution while allowing the defendant to request a credit for amounts already paid through the civil settlement in order to prevent any double recovery. That provision allowed the restitution request to focus on the attorney’s fees that had not otherwise been reimbursed.
After briefing and multiple hearings—during which the criminal defense attorney argued that contingency fees tied largely to noneconomic damages should not qualify as restitution—the court ultimately ordered the full restitution amount requested.
Lessons from Parallel Proceedings
Cases that involve both civil liability and criminal prosecution present unusual challenges for plaintiff’s lawyers. Defendants may attempt to delay discovery by invoking the Fifth Amendment, and the criminal proceedings may complicate litigation strategy.
At the same time, those parallel proceedings can create opportunities. Criminal investigations often generate useful evidence, and restitution proceedings may provide an additional avenue for recovering economic losses that were not fully compensated through the civil case.
The key is to view the civil and criminal matters not as separate worlds but as parts of the same broader process. When handled thoughtfully, the two systems can complement one another and help ensure that victims receive maximum compensation.
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