Caught Between a Rock and a Hard Place: The Perils of Simultaneously Defending Against Criminal and Civil Lawsuits

Some people are unlucky enough to find themselves subject to criminal prosecution and a civil lawsuit, all for the same underlying incident. If you find yourself in this situation, you may face a difficult decision. 

On the one hand, the Fifth Amendment to the United States Constitution guarantees that a person cannot “be compelled in any criminal case to be a witness against himself[.]” This generally means you cannot be forced to testify against yourself in your criminal lawsuit. On the other hand, the rules of discovery are very broad in most civil lawsuits. This generally means the court in your civil lawsuit can require you to testify on a wide variety of topics in a deposition, or through sworn written answers to interrogatories. 

Therefore, you face a difficult choice. If you refuse to cooperate with the discovery process in the civil lawsuit, the court may penalize you, including by entering a default judgment against you as a discovery sanction. But anything you say under oath in the civil lawsuit can be used against you in your criminal lawsuit. This may seem like an impossible bind. 

However, our courts have developed a solution: the court in your civil lawsuit may completely “stay” the civil lawsuit, which is the equivalent of hitting a proverbial “pause” button on all proceedings. The court also may strike a compromise and impose a limited stay of discovery, which means the rest of the civil lawsuit progresses normally, but you cannot be forced to testify at a deposition or give sworn, written answers to interrogatories. 

The court in your civil lawsuit has the discretion to stay proceedings when required by the “interests of justice,” but the court has no obligation to do so. In deciding whether to grant your request to stay proceedings, the court in the civil lawsuit will consider: (1) the plaintiff’s interest in moving the civil lawsuit forward, and whether the plaintiff would be prejudiced by a delay; (2) the burden you will bear from the civil lawsuit; (3) the court’s interest in managing its docket and efficiently using judicial resources; (4) the interests of non-parties; (5) public interest in your civil and criminal cases; and (6) the degree of similarity between the issues in both your civil and criminal cases.

Also, keep in mind that asking for, and receiving a stay in your civil lawsuit comes with several downsides:

  1. If you remain silent in your civil lawsuit, the fact-finder in that lawsuit may draw an “adverse inference” from your refusal to testify. In other words, the fact-finder may be entitled, under law, to assume that whatever you would have said under oath would have harmed your civil case. For this reason, remaining silent in your civil lawsuit creates a higher risk that you may lose that lawsuit.
  2. The court in your civil lawsuit may revisit and lift the stay at any time.
  3. If you are convicted in your criminal lawsuit, your conviction may serve as proof of your liability in the civil matter.

Regardless of its potential drawbacks, a complete or limited stay of your civil lawsuit may provide a powerful tool to preserve your constitutionally guaranteed right against self-incrimination. If you find yourself subject to criminal charges and a civil lawsuit for the same underlying incident, we recommend consulting with an attorney to seek advice regarding your situation.

Justin O. Sorrell

Justin O. Sorrell


Author Justin Sorrell

Author Justin Sorrell is an experienced litigator who represents and advises business clients in many types of disputes in federal and state courts across Indiana. He regularly defends employers in lawsuits including wage and retaliation claims, trade secret and confidentiality claims, non-competition and non-solicitation covenants, and breach of contract claims. Additionally, Justin has experience in defending claims involving construction-related commercial property damage, products liability, insurance coverage, collections, and appeals, and he has served as local counsel in federal and state courts across Indiana. He defends employers before the Indiana Worker’s Compensation Board, and has experience in other business-related areas, including bank loan transactions, loan work-outs, and bankruptcy. He also has significant experience in discovery of electronically-stored information (“ESI”), and advises clients on how to maximize value and minimize expense. 

He is a problem-solver, and seeks creative solutions to his clients’ issues while emphasizing the business impact of litigation choices to help guide his clients’ decision-making. When an amicable resolution is not possible, he aggressively and diligently pursues his clients’ interests.

© Riley Bennett Egloff LLP

Disclaimer: Article is made available for educational purposes only and is not intended as legal advice. If you have questions about any matters in this article, please contact the author directly.

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Posted on Apr, 16 2020 by Justin O. Sorrell