Civil Justice for Crime Victims:

A Primer for New Mexico Service Providers.

  1. The Compensation Quilt
  2. Victim Compensation Crime Victim
  3. New Mexico Crime Victim Reparations Commission
  4. Maximum award: $20,000; up to $50,000 in catastrophic physical injury cases
  5. Medical Expenses, Mental Health Counseling, Funerals,
  6. Travel for medical treatment, Lost Wages, Rehabilitation
  7. Reporting period: 30 days; 180 days for sexual assault and domestic violence victims
  8. 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
  9. Criminal Restitution
  10. Amount ordered by judge as part of criminal sentencing
  11. Reimburses out of pocket expenses
  12. 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.Civil Litigation

  1. Introduction. Two Systems of Justice
  2. Criminal—offense against the state; usually a violation of a statute
  3. Civil—offense against an individual; usually a violation of common law
  1. Advantages Benefits and Drawbacksand Disadvantages of Civil Litigation
  2. Benefits
  3. Indemnification (Financial burden of victimization, lawsuits can provide the financial resources that help victims rebuild their lives)
  4. 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.)
  5. 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)
  6. 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)
  7. Incentives for Crime Prevention (businesses employ common sense crime prevention measures to reduce their liability exposure.)
  8. 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.
  1. Drawbacks
  2. Civil actions can be expensive(Litigation Costs: Depositions, Investigators, and Expert Witnesses. Questions: Questions for Attorneys: 1. What does a deposition transcript cost? 2. How much if youto videotape it? How many depositions might you do in a case? How much do expert witnesses cost? Question for ______: 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 goHave you ever gone after a crime victim-client for costs on a case where there was no recovery? Have youDo attorneys ask ever asked 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)
  3. 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: Question for ______: How should do an attorneyyou 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?)
  4. Civil suits can be slow. (Question for Audience: An assault takes place today and the perpetrator is arrested at the scene; how long will it be before the criminal case comes to trial in your jurisdiction? Questions: Question for ______: If you file a civil case is filed today, when will it come go to trial? Which should go first? Civil or criminal? Prosecutors’ concerns with both going on at the same time.)

Part Two 10:45- 12:30

IV.Whom does the victim sue?

A.First Party Defendants

1. The Offender, Co-conspirators and Accomplices

2. Parents and Supervising Custodians (Grover v. Stechel, Alber v. Nolle)

B.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 (Young v. Van Duyne) [What is the standard in NM?]

5. Government—for failure to protect

a. Sovereign Immunity Standard in New Mexico

Federal Constitutional Claims (Castle Rock v. Gonzales p. 14, Thurman v. City of Torrington p. 15)

  1. 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).
  2. Intentional Torts
  3. Examples include:
  4. Battery
  5. Assault
  6. Wrongful Death
  7. Fraud
  8. Domestic Violence
  9. Stalking (When do you want to sue a Stalker? Common Law Claims, Statutory Claims, Equitable Relief.)
  10. Intentional Infliction of Emotional Distress (Questions: n for ______: What Constitutes IIED in NM? What do you needs to be to proved? Note: we will discuss Negligent IED discussed later in the outline.)
  11. Elements of Intentional Torts
  12. The Act
  13. Intent
  14. Causation

d.Damages

(1)Compensatory (All about the harm the victim suffered; 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.

(2)Punitive (Punitive damages meant to punish, make someone pay till it hurts. We all have different thresholds of financial pain. Jeff talks about the movie “Class Action” loosely based on the Ford Pinto case and putting profits over people. Question for ______: What behavior will get punitives? Intentional? Reckless Disregard? Drunk Driving? How is it determined? Is there a cap? (Jeff Dion tells the true story of the McDonald’s Coffee Case)

  1. Affirmative Defenses to Intentional Torts
  2. Consent (Often used in rape cases)
  3. Self Defense (can only use that amount of force reasonable and necessary)
  4. Defense of Others (only defense of people, not defense of property or pets)

Lunch 12:30 – 1:15

Part Three 1:15—3:00

  1. Negligent Torts
  2. Examples Include (THIS SECTION IS OPEN FOR ATTORNEY INPUT AND EXAMPLES)Include:
  3. Negligent Hiring
  4. Negligent Retention
  1. Negligent Supervision
  1. Negligent Entrustment
  1. Inadequate Security
  1. 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)
  1. Title IX (- Teacher on student violence, student on student offenses, and failure to appropriately respond to student’s sexual assault, standard is deliberate indifference)
  2. Negligent Infliction of Emotional Distress. (Question: n for ______: Is there an impact rule? Who can Recover?
  1. Negligence Per Se
  2. Elements of a Negligent Tort
  3. Existence of a duty of care
  4. Breach of the duty
  5. The breach caused damage
  6. It was foreseeable that the breach would result in damage
  7. Damages

C. Affirmative Defenses to Negligent Torts

1. Comparative Negligence. (Question for ______: How does this work in NM?

2. Assumption of the Risk

3. Workers Comp Bar. (Questions : for ______: If you Victim does notdon’t qualify for Worker’s Comp because it does not ‘arise out of the employment’ can you he/she then possibly sue, or or are you barred from both? What about employer’s intentional acts?

  1. Statutes of Limitation
  2. When does the clock start?
  3. Can anythingpause the clock?
  4. 3 years for personal injury, malpractice
  5. 3 years libel, slander
  6. 4 years injury to personal property,

f. 4 years for fraud

  1. Special notice requirement for claims against the state government
  2. Civil Statute of Limitation for Child Sex Abuse, Age 24 or 3 years from discovery
  1. People and Businesses Who Contribute to Harm: Who else is responsible / Who can the victim sue?
  2. First Party Defendants
  3. The Offender, Co-conspirators and Accomplices
  4. Parents and Supervising Custodians (Grover v. Stechel, Alber v. Nolle)
  5. 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
  6. Sovereign Immunity Standard in New Mexico
  7. Federal Constitutional Claims (Castle Rock v. Gonzales, Thurman v. City of Torrington)
  1. Damages a Victim Can Recover
  2. 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.
  3. Medical Bills.
  4. Pain and Suffering.
  5. 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.
  6. Lost income / earning opportunity.
  7. Loss of household services.
  8. 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)
  1. How a civil lawyer approaches representation of a Crime Victim
  2. Explain Benefits v. Drawbacks of civil claims
  3. Guidance during prosecution
  4. Contact with prosecutors. Facilitate communication. Discuss benefits / drawbacks of representation in criminal proceeding.
  5. Discuss timing of filing claim / lawsuit
  6. Discuss treatment options, including counseling, and whether to make it a part of the claim / lawsuit.

h.

Part four 3:15 – 3:30

  1. VI.Satisfying a Judgment. (THIS SECTION IS OPEN FOR ATTORNEY INPUT AND EXAMPLES. Questions: Question for ______: 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 )
  2. Seize perpetrator’s income from
  3. Credit against property settlement
  4. Wages
  5. Benefits Pensions
  6. Dispersal from trust funds, royalties, rents
  7. Tax refunds and government entitlements
  8. Windfalls—inheritance, civil judgments, even lotteries
  9. Attach other holdings, such as:
  10. Cars, Boats, Jewelry, and other personal possessions
  11. Real Estate
  12. Business Interests
  13. Bank Accounts
  14. Financial Holdings—stocks, bonds, etc.
  15. All other debts owed offender
  16. Insurance Policies
  17. Homeowner’s Insurance
  18. Automobile Insurance
  19. Umbrella Insurance
  20. Business Insurance
  21. Professional Malpractice Insurance

a.Medpay

  1. Exclusions

VII. Victim experience in the Civil Justice System 3:30 – 3:45

  1. VIII. The Role of Service Providers 3:45-4:30
  2. Service Providers can and should:
  3. Advise victims of the possibility of civil remedies
  4. Refer victims to qualified counsel , or
  5. Refer victims to the National Crime Victim Bar Association to find the right attorney . . .
  6. With the interest and experience to take the case
  7. Who understands the victims needs and won’t make it worse
  8. Who will employ the strategy and techniques that will protect the victim’s privacy and boundaries

(1)Jane or John Doe filings

(2)confidentiality agreements

(3)filings under seal

(4)video depositions

  1. Civil Justice Resources available to assist service providers
  2. Civil Justice for Victims of Crime
  3. Civil Justice Caselaw Database
  4. Connect Directory
  5. Attorney Referral Line 202-467-8716
  6. Counseling Crime Victims: Practical Strategies for Mental Health Professionals, by Laurence Miller,
  7. What to do When the Police Leave: A guide to the First Days of Traumatic Loss, by Bill Jenkins,
  8. Coping With Traumatic Death: Homicide. A book to help you in your time of need, by Bob Baugher & Lew Cox

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