A Former DA’s Take on Civil Litigation

 

Often there is an overlap in civil and criminal litigation. However, few civil lawyers have
criminal law experience and vice versa. It is critical that the two areas be aware of each other
during the development of cases. It is important for claims handlers to understand the
development of criminal cases from the beginning. The most common application of a criminal
case resulting in civil litigation typically involves evidence of a vehicular accident. Even if there
is not a crime involved in an accident, there are retention issues that should be considered. This
article comes from a former Assistant District Attorney who hopes to fill in holes that are easy to
fall into.

The best way to illustrate the benefits is working through a case example. Let’s say that Alvin is
driving a commercial vehicle and gets in an accident with Bill. Bill is injured severely and might
not survive. The accident occurs in Harris County, Texas. Once the first responder arrives, it is
determined that Alvin might have been on his phone and is at fault. In Harris County, this would
trigger a call to the Harris County Sheriff's Office Vehicular Crimes Unit.

Preservation of evidence will be key to the civil case. In the example, preservation would not be
an issue because a criminal investigation would be ongoing. However, let’s say Alvin just rear-
ended Bill and there was no suspicion of a crime. There may be more issues preserving evidence.
Most policing agencies will have body cameras that are activated at the scene. It is essential to
send a request for the footage within the first couple days. In Texas, if Bill died or suffered
serious injuries and there is suspicion of a crime by Alvin, a blood draw is automatic. Make sure
that any lab results are included when you receive the case file from the agency.

In some jurisdictions, it is a policy for vehicular accidents involving a death to be presented to
the grand jury or panel with the DA’s office for determination of whether a crime was
committed. If this occurs, it can take longer for more information to be gathered. The State will
not release much information if an investigation is pending. If Alvin is charged with a crime, it’s
important to work with a Criminal Defense lawyer. Often, the way we receive our information
from agencies is through open records request/subpoena. Pursuant to Texas Rule of Criminal
Procedure Art. 39.14, a defense attorney is entitled to copies of the State’s file with some
limitations.

There are different resolutions that can occur. For example, if Bill wasn’t severely injured and
Alvin happened to be intoxicated at the time, some DA’s offices may consider Pre-Trial
Diversion as an option. Pre-Trial Diversion is typically run by the DA’s office, and it is up to
each jurisdiction on whether it is offered and what the criteria is. In Harris County, Alvin might
meet the eligibility criteria for Pre-Trial Diversion. However, in another county, the district
attorney’s office might deny Alvin Pre-Trial Diversion because there was an accident as part of
his crime. Pre-Trial Diversion is beneficial because it typically involves the case being dismissed
upon completion of the terms. Sometimes, once the case is dismissed, an expunction can be
obtained.

Bottom line is to make sure you are aware of the procedures for your jurisdiction when law
enforcement is involved and don’t be afraid to consult someone familiar with criminal
investigations. It could save you some time and get you key information for your civil case.