Representing Crime Victims in Civil Litigation: A Fast-Growing Practice Area
When speaking with colleagues about representing crime victims in civil cases, a few questions typically arise. First, who are typical defendants in these cases? A criminal perpetrator is not usually a desirable defendant in a civil action. However, because our society places some burden of protecting people on organizations, companies, and property owners, there are often viable cases against third party defendants after a criminal act has occurred. In addition, filing against a criminal perpetrator can be a worthwhile endeavor. While collecting on a judgement in such cases may be difficult, victims who have not received the justice that they deserve through the criminal system often gain a sense of validation when a perpetrator is found civilly liable.
A second common question is, who handles cases on behalf of crime victims? At first, it can appear that most attorneys do not take on such cases. To the contrary, after reviewing examples of civil claims that they’ve handled, many attorneys realize that they have represented crime victims in past litigation. Attorneys most often recall handling a child sexual assault case against a third party organization, or an inadequate security case for a victim of a violent crime. Some have also handled Title IX matters against a college or university after a student has been sexually assaulted. In addition, many attorneys have handled alcohol liability cases, as well as wrongful death cases where a crime precipitated the victim’s death. After addressing initial misconceptions, this practice area piques interest, and lawyers want to know more.
One additional issue that often comes up in this area of litigation involves questions about insurance coverage. Most lawyers know that insurance coverage has exclusions for criminal activity, and thus assume that if a criminal act has occurred, there will be no coverage. However, many crimes also involve negligence. Even cases with more ambiguous theories of negligence can be successful. For instance, one member of the National Crime Victim Bar Association pursued a civil case against an individual perpetrator after a sexual assault occurred on a college campus. The local prosecutor did not have enough evidence to pursue criminal charges, so charges were dropped. The perpetrator alleged that he was intoxicated, and thus did not intentionally sexually assault the victim. The victim’s attorney filed a civil suit against the perpetrator, and was able to attach the perpetrator’s parents’ homeowner’s insurance policy under a theory of negligence. Even though the incident occurred on a college campus, the perpetrator’s permanent residence was his parents’ home, and thus, his negligence was covered by the insurance policy. The case resulted in a favorable settlement for the victim.
Some of the more notable civil lawsuits that have received media attention are cases involving crime victims, and many of those victims were represented by members of the National Crime Victim Bar Association. A few examples include: litigation against various Catholic Dioceses for harboring employees who were known sexual predators; cases against Penn State University for crimes committed by Jerry Sandusky; and the successful claims against the airlines for negligent security for allowing terrorists to board the planes with box cutters on September 11th. In fact, the infamous tragedy involving the attempted murder of Sunny Von Bulow resulted in the founding of the National Center for Victims of Crime over thirty years ago. Many of these cases required creative litigation and negotiating strategies in order to gain favorable results for the victims.
How Representing Victims is Unique
Representing crime victims in civil cases is not easy work, but it is incredibly rewarding. All victims have experienced a traumatic event and will handle that trauma differently. There are many studies, papers, and trainings on how trauma affects victims, and even more specifically on the impact that it could have on litigation. For instance, victims often do not have a linear memory of the event that took place; they recall the situation in bits and pieces. Any attorney taking on such matters should undergo training on trauma and learn best practices for working with victims. The National Crime Victim Bar Association hosts an annual Conference where attorneys can earn CLE credit while learning more about civil actions for criminal acts – more information can be found at www.victimbar.org/trainings.
In addition, many attorneys doing this type of work fail to highlight it on their websites. Law firm websites often focus on catastrophic injury, medical malpractice, wrongful death, and the like. A crime victim who is unfamiliar with the legal field may assume that a firm only advertising for such things will not be able to represent them. The National Crime Victim Bar Association has an Attorney Referral Service where crime victims can seek legal representation through our network of lawyers, based on specialty area and geographic location. Victim callers often express frustration about the lack of attorneys who practice in this area. Thus, we encourage attorneys handling Title IX, child sexual abuse, elder abuse, and other cases involving crime victims to include such information on their websites.
There are a number of other ways to share this information. The National Crime Victim Bar Association hosts a number of free Civil Justice Seminars each year for victim advocates, law enforcement, mental health professionals, and other practitioners in the field to learn about civil litigation for crime victims. The trainings focus on state-specific law and provide a crash course in tort law to those who are working with victims every day. Attorneys who sponsor the seminars are provided with the opportunity to discuss some of the work they’ve done and share their experiences.
For more information about the National Crime Victim Bar Association, or for questions about our conferences and seminars, or the Attorney Referral Service, please contact us at 202-467-8764 or e-mail us at [email protected]. The Attorney Referral Service can be reached directly at 1-844-LAW-HELP.