20 Trial Lawyer • Winter 2022 the statute of limitations during the pendency of the criminal case. However, it is worth noting the statute of limitations for sexual assault is now five years under ORS 12.118 and five years for certain “compensable crimes” under ORS 127.065. You should likewise keep an eye on any tort claim notice deadlines, which are strict and often short. ORS 30.275. Now to the less clear-cut types of decisions regarding early filing. Notwithstanding my prior admonitions, there can be compelling reasons to file civil cases before the conclusion of the criminal case. For example, do you have reason to believe the perpetrator is secreting his or her assets? Are there other civil claims pending against the perpetrator that might deplete the available assets? Is the client feeling worn down by how long the criminal prosecution is taking? Is the client in need of financial assistance on a shorter timeframe? When making this decision, keep in mind some cases will not be as negatively affected by impeachment evidence as others, and thus may be filed early with less risk. Examples include cases with photographic or video evidence , confessions, strong physical evidence, corroborating witnesses or prior convictions against the perpetrator for similar offenses. I recently sent a demand letter on behalf of a woman who was a victim in a pending criminal case for invasion of privacy for which there was a confession and video evidence. The civil claim did not negatively affect the criminal case, which resolved quickly with a plea. Many sex cases are tougher and more vulnerable to attack with impeachment evidence, such as those involving “hesaid/she-said” allegations without a lot of physical evidence or corroboration or historical child abuse cases where the evidence might be sparse. Some years back, I initiated a civil claim in a sexual assault case where it was my client’s word against the perpetrator. The prosecutor declined to bring charges, in part because of the evidence of a civil claim. This taught me an important lesson about how the prosecution perceives these cases and their challenges, and how best to advise clients facing the choice whether to initiate a civil claim during the pendency of the criminal case. I’m here to help Establishing a good working relationship with the assigned prosecutor will increase the chances of a successful criminal prosecution and civil case. I recommend finding out whether a prosecutor has been assigned to the case and checking in with them early in the process. But a word of warning: the prosecutor may not be particularly happy to see you. A skilled victim’s attorney can help make a prosecutor’s life easier, but an unskilled one can potentially make the criminal case more challenging. So how can civil attorneys help foster a good working relationship? Come to the relationship humbly and offer to help. Do not use your initial communication with the prosecutor as an opportunity to demand a lot of specific information, access to documents, or make demands about specific outcomes you would like to see in the criminal case. This applies doubly if you are, like myself, not a former prosecutor, because you may not have the trust and goodwill developed fromworking in that field. So what can a victim’s attorney offer? Actually, a lot. For one, you probably have the strongest relationship with the victim. You can help educate your client on the criminal case process, ensure appointments and court dates are attended, track down documents, provide information, and prepare and submit restitution information as needed. Your offer to handle this load will be appreciated by Guilty and Liable Continued from p 19
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