21 Trial Lawyer • Winter 2022 both the attorney and the victim advocate assigned to the criminal case. Other opportunities to help might a r i s e . In a recent ca s e whe re I represented the victim in a criminal case with a potential future claim, I noticed the indictment had cited the incorrect part of the statute underlying the charge. The prosecutor was grateful I had gently pointed out the discrepancy so she could seek an amended indictment. Most attorneys are happy to have a second set of eyes and offers to help on their cases. Look for opportunities Just because you are trying to give the prosecution room to breathe does not mean you need to forget about the civil case. Particularly if you have established a rapport with the prosecutor, you should look for opportunities to potentially lock in elements of the civil case. If, for example, the defendant is heading toward a plea deal, you might request that the prosecutor attempt to secure a conviction for an offense committed during a particular time period, at a particular location, or to a particular charge. Crime victims have a statutory and constitutional right to be consulted about plea offers in “violent felony” cases under ORS 147.512(2), and their request for entry of plea to particular charges must be considered by the prosecution. You may even be able to work with the prosecutor for specific language in the plea agreement that is beneficial to your case. Work together Some cases may be amenable to negotiating a global settlement of the criminal and civil case, such as a case I litigated with my partner several years ago. In that case there was a criminal prosecution for child sex abuse against my client’s step-grandfather, who was 79 years old at the time of the indictment. In a private mediation with a retired judge, the prosecutor and the civil attorneys, the parties were able to negotiate a settlement whereby my client received compensation and the state dismissed charges. This result was achievable because the district attorney had indicated he was not interested in seeing the defendant go to prison, and because the client was not hell-bent on pushing for that result. Whatever our personal opinions are about the unfairness of wealthier individuals avoiding prison in this manner, the client was pleased to avoid having to testify at trial and to receive compensation for her significant injuries. Not every case is appropriate for resolution in this manner, and some prosecutors and judges will simply not agree to it. But it is worth exploring in cases where you have extenuating circumstances (such as old age of the defendant), claims subject to civil compromise, or those appropriately resolved with a stipulated compensatory fine under ORS 137.101. Look out for these opportunities to creatively serve your client. Twists and turns There is no one-size-fits all approach to making these decisions. Each client has unique needs and each case has its own twists and turns. Civil cases that coincide with underlying criminal prosecutions are unique, and, when handled well, can provide significant benefit to both the prosecutor and your client’s civil claims. Barb Long represents survivors of sexual abuse in actions against individuals and institutions. Long contributes to the OTLA Guardians of Civil Justice at the Rising Stars level and is a partner at Vogt & Long PC, 101 SW Main St., Ste. 1900, Portland, OR 97204. She can be reached at barb@vogtlong.com or 503-228-9858. Each client has unique needs and each case has its own twists and turns.
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