Civil Justice for Crime Victims:
A Primer for New Mexico Service Providers.
I.
The Compensation Quilt
A.
Victim Compensation Crime Victim
1. New Mexico Crime Victim Reparations Commission
2. Maximum award: $20,000; up to $50,000 in catastrophic physical injury cases
3. Medical Expenses, Mental Health Counseling, Funerals,
4. Travel for medical treatment, Lost Wages, Rehabilitation
5.Reporting period: 30 days; 180 days for sexual assault and domestic violence
victims
6. filing period: 2 year, Exceptions: child victims must file application within two
years of date reported to law enforcement or 18th birthday, whichever comes first
B.
Criminal Restitution
1.Amount ordered by judge as part of criminal sentencing
2. Reimburses out of pocket expenses
3. Medical bills, property damage, lost wages, etc.
4. Court order doesn’t guarantee payment (Restitution Order is enforceable in the
same manner as a civil judgment?)
C.
II.
Civil Litigation
Introduction. Two Systems of Justice
A.
Criminal—offense against the state; usually a violation of a statute
B.
Civil—offense against an individual; usually a violation of common law
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III.
Benefits and Drawbacks of Civil Litigation
A.
Benefits
1.
Indemnification (Financial burden of victimization, lawsuits can provide
the financial resources that help victims rebuild their lives)
2.
Accountability (Criminal system holds offenders accountable to society,
civil system holds perpetrators and other responsible parties directly
accountable to victims for the harm they caused.)
3.
Sense of Control (In civil case, victim is a party. Victim can always be in
courtroom, victim must approve settlement, victim can choose attorney,
attorney represents victim’s interests)
4.
Personal Justice (Regardless of what happens in the criminal case, victim
always has an independent right to bring a civil action. Burdens of proof:
beyond a reasonable doubt vs. preponderance of the evidence. O.J
Simpson Case)
5.
Incentives for Crime Prevention (businesses employ common sense crime
prevention measures to reduce their liability exposure.)
6.
Publicize the Issue and Promote Change (Catholic Clergy Abuse Scandal:
Change was brought about by lawsuits rather than criminal prosecution or
investigative journalism. Jeff Dion will talk about how the church
leveraged confidentiality agreements to keep the secret and exacerbate the
problem.
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B.
Drawbacks
1.
Civil actions can be expensive (Litigation Costs: Depositions,
Investigators, and Expert Witnesses. Questions: What does a deposition
transcript cost? How much to videotape it? How many depositions in a
case? How much do expert witnesses cost? Who is ultimately responsible
for paying the costs? Paid from Victim’s Share of proceeds? What if no
recovery, who pays then? Do attorneys ever go after a crime victim-client
for costs on a case where there was no recovery? Do attorneys ask a
crime victim-client for money up front for expenses on a contingency
case? Problem with civil litigation being expensive is that some cases are
not economically feasible for litigation; that is when victims need to be
informed of compensation and restitution)
2.
Victims may be subjected to the trauma of a deposition and expose
themselves to scrutiny. (When victims put their mental health at issue,
their counseling records will be discovered; when they put their financial
health at issue, their financial records are discovered. Questions: How
should an attorney prepare a victim for what the process will be like and
how invasive it can be so they can make an informed decision as to
whether litigation is right for them?)
3.
Civil suits can be slow. Questions: If a civil case is filed today, when will
it go to trial? Which should go first? Civil or criminal? Prosecutors’
concerns with both going on at same time.)
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IV. Types of Claims. Torts 101—A tort occurs when a person intentionally injures another or
when a person’s failure to perform his or her duty of care is the cause of injury to another
(negligence).
A.
Intentional Torts
1.
Examples include:
a.
Battery
b.
Assault
c.
Wrongful Death
d.
Fraud
e.
Domestic Violence
f.
Stalking (When do you want to sue a Stalker? Common Law
Claims, Statutory Claims, Equitable Relief.)
g.
Intentional Infliction of Emotional Distress Questions: What
Constitutes IIED in NM? What needs to be proved? Note:
Negligent IED discussed later in the outline.
2.
3.
Elements of Intentional Torts
a.
The Act
b.
Intent
c.
Causation
Affirmative Defenses to Intentional Torts
a.
Consent (Often used in rape cases)
b.
Self Defense (can only use that amount of force reasonable and
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necessary)
c.
Defense of Others (only defense of people, not defense of property
or pets)
B.
Negligent Torts
1.
Examples Include:
a.
Negligent Hiring
b.
Negligent Retention
c.
Negligent Supervision
d.
Negligent Entrustment
e.
Inadequate Security
f.
Identity Theft ( Claims for: Failure to secure personal
information; Banks that allow Identity thieves to open fraudulent
checking accounts and don’t close them when notified by victim
resulting in victim being criminally charged for writing bad
checks; Credit Reporting Agencies that don’t note allegation of
Identity theft on Victim’s credit report)
g.
Title IX (- Teacher on student violence, student on student
offenses, and failure to appropriately respond to student’s sexual
assault, standard is deliberate indifference)
h.
Negligent Infliction of Emotional Distress. Question: Is there an
impact rule? Who can Recover?
2.
3.
Negligence Per Se
Elements of a Negligent Tort
a.
Existence of a duty of care
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C.
b.
Breach of the duty
c.
The breach caused damage
d.
It was foreseeable that the breach would result in damage
e.
Damages
Affirmative Defenses to Negligent Torts
1.
Comparative Negligence.
2.
Assumption of the Risk
3.
Workers Comp Bar. Questions: If Victim does not qualify for
Worker’s Comp because it does not ‘arise out of the employment’ can
he/she then possibly sue, or barred from both? What about employer’s
intentional acts?
Statutes of Limitation
4.
a.
When does the clock start?
b.
Can anything pause the clock?
c.
3 years for personal injury, malpractice
d.
3 years libel, slander
e.
4 years injury to personal property,
f.
4 years for fraud
g.
Special notice requirement for claims against the state
government
h.
Civil Statute of Limitation for Child Sex Abuse, Age 24 or 3
years from discovery
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V.
People and Businesses Who Contribute to Harm: Who else is responsible / Who can
the victim sue?
A.
First Party Defendants
1.
The Offender, Co-conspirators and Accomplices
2.
B.
Parents and Supervising Custodians (Grover v. Stechel, Alber v. Nolle)
Third Party Defendants
1.
Landlords John, Innkeepers Elaine, Schools , Hospitals and Merchants
(Ciup v. Chevron U.S.A., Inc., Doe v. Santa Clara Pueblo)—for inadequate
security
2.
Perpetrators’ employers—for negligent hiring and negligent supervision
(Pittard v. Four Seasons Motor Inn, Davis v. Board Of County Commisioners,
Madsen v. Scott, Eckhardt v. Charter Hospital, John Does v. Roman Catholic
Church)
3.
Social Hosts and Tavern Keepers for Liquor Liability
4.
Corrections and Mental Health Officials—for release of dangerous persons
5.
Government—for failure to protect
a.
b.
Sovereign Immunity Standard in New Mexico
Federal Constitutional Claims (Castle Rock v. Gonzales, Thurman v.
City of Torrington)
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VI.
Damages a Victim Can Recover
A.
Compensatory. All about the harm the victim suffered; the greater the harm greater
the compensatory damages. Economic damages: past and future can be
objectively determined. Non-economic damages are more subjective and really
relate to the trauma the victim suffered.
1.
Medical Bills.
2.
Pain and Suffering.
3.
Loss of enjoyment of life. Not being able to participate in work, family
activities, sports or other activities we find meaningful in our individual lives.
B.
4.
Lost income / earning opportunity.
5.
Loss of household services.
Punitive / exemplary. Punitive damages meant to punish, make someone pay till it
hurts. We all have different thresholds of financial pain. Questions: What
behavior will get punitives? Intentional? Reckless Disregard? Drunk Driving?
How is it determined? Is there a cap? (Discuss true story of the McDonald’s
Coffee Case)
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VII.
How a civil lawyer approaches representation of a Crime Victim
A.
Explain Benefits v. Drawbacks of civil claims
B.
Guidance during prosecution
C.
Contact with prosecutors. Facilitate communication. Discuss benefits / drawbacks
of representation in criminal proceeding.
D.
Discuss timing of filing claim / lawsuit
E.
Discuss treatment options, including counseling, and whether to make it a part of
the claim / lawsuit.
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VIII.
Satisfying a Judgment. Questions: What are the basic steps for Docketing and
Collecting a Judgment in NM? Example: 1. Determine assets 2. Docket Judgment in county
where assets are; 3. Bring Judgment to Sheriff in County where assets are; 4. Sheriff issues writ
and seizes assets )
A.
B.
C.
Seize perpetrator’s income from
1.
Credit against property settlement
2.
Wages
3.
Benefits Pensions
4.
Dispersal from trust funds, royalties, rents
5.
Tax refunds and government entitlements
6.
Windfalls—inheritance, civil judgments, even lotteries
Attach other holdings, such as:
1.
Cars, Boats, Jewelry, and other personal possessions
2.
Real Estate
3.
Business Interests
4.
Bank Accounts
5.
Financial Holdings—stocks, bonds, etc.
6.
All other debts owed offender
Insurance Policies
1.
Homeowner’s Insurance
2.
Automobile Insurance
3.
Umbrella Insurance
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4.
Business Insurance
5.
Professional Malpractice Insurance
6.
Medpay
7.
Exclusions
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IX.
The Role of Service Providers
D.
Service Providers can and should:
1.
Advise victims of the possibility of civil remedies
2.
Refer victims to qualified counsel , or
3.
Refer victims to the National Crime Victim Bar Association to find the
right attorney . . .
a.
With the interest and experience to take the case
b.
Who understands the victims needs and won’t make it worse
c.
Who will employ the strategy and techniques that will protect the
victim’s privacy and boundaries
4.
(1)
Jane or John Doe filings
(2)
confidentiality agreements
(3)
filings under seal
(4)
video depositions
Civil Justice Resources available to assist service providers
a. Civil Justice for Victims of Crime
b. Civil Justice Caselaw Database
c. Connect Directory
d.
Attorney Referral Line 202-467-8716
e. Counseling Crime Victims: Practical Strategies for Mental Health
Professionals, by Laurence Miller, www.springer pub.com
f.
What to do When the Police Leave: A guide to the First Days of
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Traumatic Loss, by Bill Jenkins, http://www.willsworld.com/
g.
Coping With Traumatic Death: Homicide. A book to help you in your
time of need, by Bob Baugher & Lew Cox http://www.vcvs.org/
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