By Kevin Gres, Esq., Law Offices of Kevin Gres
Johnny Doe is being sued. As your initial discovery deadlines slowly approach, you call up Johnny to discuss crafting responses. After a few minutes of pleasantries, Johnny tells you he was recently indicted by a grand jury and has a court date quickly approaching. Talk about throwing a monkey wrench into the mix. How does this impact your case? What are the larger ramifications?
You do not need to be a
criminal defense attorney well-versed in constitutional criminal procedure to
navigate this. Any civil attorney, no matter the area of practice, should be
aware of the perils and pitfalls of parallel civil and criminal proceedings.
This article will provide you with a brief overview of the issues and some of
the remedies when confronted with this situation.
There are two major obstacles in parallel
proceedings, the first, unwittingly waiving Johnny’s Fifth Amendment rights in
your civil case, and two, having Johnny make incriminating admissions even if
his rights are not legally waived.
Johnny can unwittingly waive
his right to remain silent if he answers a complaint with specific denials
under oath, responds to special interrogatories, requests for admissions, or
even requests for production. If you don’t spot the issue early enough, trying
to assert the Fifth Amendment midway through the discovery process will likely
result in a successful motion to compel by opposing counsel. If waived, opposing counsel will have a field
day at Johnny’s deposition, and there will be very little you can do about it.
But you’re smarter than that.
You caught it early, and Johnny will not be waiving his rights. Pat yourself on
the back…but don’t assume you’re out of the minefield quite yet.
Many experienced civil
attorneys believe that Johnny should be as cooperative as possible without
waiving. This is risky. Any admission made in the civil case, whether it
results in a waiver or not, can still likely be used in a future criminal
proceeding. Under state and federal rules of evidence, a defendant’s statement
is admissible even if the defendant asserts his Fifth Amendment right and
elects not to testify at his trial. If the statement is relevant and has proper
foundation, the jury will hear it and the damage will be done.
So, you invoke, and you invoke
hard. You will quickly realize invoking is not all it is cracked up to be.
Depending on the nature of the case, successfully invoking your client’s Fifth
Amendment rights can prevent you from meaningfully defending your client from
the plaintiff’s claims. Discovery comes to a screeching halt. Invoking could
even result in an adverse inference jury instruction at trial. Your client is on
the horns of a rather prickly dilemma. What to do?
Courts are sensitive to the
unfairness of Johnny having to choose between his freedom and his fortune, his
rights and his riches. Johnny should petition the court to stay his civil case
until the criminal case resolves. That would allow him to assert his Fifth
Amendment right in his criminal case without sacrificing his defense in his
civil case. Generally, courts look at six factors to determine whether a stay is
appropriate, including: whether there is a common core of facts between the two
actions, the interests of the plaintiff and burden on defendant, the interests
of the court and public, and the status of the criminal case.
If the stay is denied, Johnny should
at least request a temporary stay on discovery. If that is denied, a protective
order on the discovery should be requested, so if prosecutors attempt to gain
access to the discovery in the criminal case, his defense attorney will have a
stronger objection.
There are many reasons why
prosecutors love parallel proceedings. Civil discovery is often more
encompassing than criminal discovery laws. There are depositions, admissions –
things prosecutors can only dream of. In my time as a prosecutor, I would often
dig through civil discovery, pull domestic violence restraining order
transcripts from Stanley Mosk on my lunch hour, and subpoena all kinds of admissions.
It was like taking a metal detector to a busy beach on a summer day.
No area of law is immune from
potential criminal action. Often, a civil case is a treasure trove of
incriminating information for law enforcement and prosecutors. But recognizing
the issue and having the legal tools to navigate parallel proceedings gives you
and Johnny a substantially higher likelihood of success in both of his
cases.
BIO:
Kevin is a native Angeleno and attorney specializing in
criminal defense. He worked as a prosecutor in Los Angeles, and then for the
Law Offices of Donald Etra. Kevin now represents individuals and corporations
under investigation or accused of crimes, including misdemeanors and felonies
(emphasis on white collar/fraud), both state and federal.
Staying at Home Doesn’t Mean You Can’t Spice Up the Menu – Century City Bar Association Board’s Favorite Take-Out and Delivery Spots
During this unprecedented time where we are spending most (or all) of our time at home in order to protect our community, the Century City Bar Association board members have found some great take-out and delivery options to keep the stay at home menu interesting and delicious! And to support some of our local restaurants, we thought we would share some of our favorites!
Blackbird Pizza Shop – Fairfax/West Hollywood
blackbirdpizzashopla.com
CCBA board member Rachelle Cohen has enjoyed the Chicago-style pizza from Blackbird Pizza Shop as an indulgent and heartwarming meal.
Clementine – Century City/Beverly Hills
https://www.clementineonline.com/
The Century City Bar Association board members are accustomed to enjoying great sandwiches, salad, and cookies from Clementine during their monthly meetings. And with both pick-up and delivery options, you, too, can enjoy there delicious food at home.
Felix Trattoria – Venice
https://felixla.com/
If you are in the mood for homemade pasta, Felix has you covered. With both take away and delivery, enjoy some of their “Pasta Fresca Kits for 2.” CCBA Board member Brett Taylor recommends the “Rigatoni Cacio e Pepe Kit”.
Primo Passo Coffee Co. – Santa Monica
https://www.primopassocoffee.com/
CCBA board member Ashley Bowman enjoys Primo Passo Coffee Co. on Montana Avenue in Santa Monica. It is great for curbside coffee, and Ashley thinks it has the best espresso in Santa Monica. The baristas are still preparing the full drink menu (and snack menu) for take-away, and they’re enforcing social distancing best practices for employees and folks waiting for their drinks.
Maple Block – Culver City
https://mapleblockmeat.com/
CCBA board member Camilla Chan enjoys Maple Block in Culver City. They have delicious barbecue, and their biscuits are amazing. Maple Blocks does both delivery and curbside pick-up.
Mastro’s – Beverly Hills
If you are celebrating a special occasion during this time, Mastro’s is a great option to treat yourself with both pick-up and delivery menus. Whether you want a delivered already prepared steak, or if you want to try to cook it yourself at home with one of Mastro’s “Dine at Home Steak Kits,” Mastro’s will not disappoint. CCBA Board Member Brett Taylor suggests not skipping dessert and trying their butter cake to go.
Pitfire Pizza – West Los Angeles, Mar Vista/Venice, Costa Mesa, Manhattan Beach, Pasadena, Westlake Village, and North Hollywood
https://www.pitfirepizza.com/home
Pitfire Pizza is open for lunch and dinner for take away, pickup and delivery. In addition to their normal menu of great pizzas, pastas, and salads, Pitfire’s “Provisions” menu has some fun options such as the “Kids Pizza Making Kit.” And if you are running out of some essentials, their “rescue kit” has 2 cloth face masks, 2 rolls of toilet paper, 1 bottle of hand sanitizer, and 1 pack of sanitizer wipes.
The Semi-Tropic – Silver Lake/Echo Park
http://www.thesemitropic.com/
The Semi-Tropic is a neighborhood favorite in the Silver Lake/Echo Park area and was started by recovering attorneys. Like other small restaurant owners in our community, the owners have been doing what they can to adapt to the times and weather the storm. Their efforts include selling some delicious food and cocktails to-go if anyone lives in the area and is looking for good take out options. They are also offering a generous 50% discount on the bar’s wine inventory. CCBA board member Michael Seiden purchased some bottles a few weeks ago and was definitely impressed by the quality.
Tangaroa Fish Market & Raw Bar – Culver City
https://www.tfmraw.com/
If you are in the mood for some seafood, Tangaroa’s fresh and frozen market is still open. You can order some fresh seafood to cook at home, or enjoy already prepared fish tacos, ceviche, or even oysters shucked on the ½ shell.
LAUSD Schools are closed, but Communities In Schools of Los Angeles is not
Communities In Schools of Los Angeles (CISLA) is usually in schools working towards our mission to surround students with a community of support, empowering them to stay in school and achieve in life. We provide one-on-one case management for nearly 1,000 at-risk students and their families.
We’ve had to change the way we approach that mission.
During the COVID-19 crisis, we have shifted our attention to focus on providing additional wraparound support centered around conducting almost daily check-ins, communicating relevant information, and providing basic needs to students and their families.
As you probably know, in high-poverty neighborhoods, LAUSD schools serve a much larger purpose than just providing an education. Nearly 85% of LAUSD students live at or below the poverty line. That being said, as one could imagine, in Los Angeles, a lot of schools are a primary source of food, shelter, medical care, psychological services, and physical safety for some of our most vulnerable students. Schools also provide families with resources, information and translation services.
Now that schools are closed, this pandemic has revealed just how vulnerable students are when they don’t have the ability to go to school. It’s also revealing how high the actual costs are when it comes to meeting these non academic needs.
Communities In Schools of Los Angeles is working very hard, everyday, to try to meet those non academic needs while schools are closed.
If you want to help us help our students and their families, please visit CISLosAngeles.org and donate today.
Perils and Pitfalls of Parallel Proceedings
By Kevin Gres, Esq., Law Offices of Kevin Gres
Johnny Doe is being sued. As your initial discovery deadlines slowly approach, you call up Johnny to discuss crafting responses. After a few minutes of pleasantries, Johnny tells you he was recently indicted by a grand jury and has a court date quickly approaching. Talk about throwing a monkey wrench into the mix. How does this impact your case? What are the larger ramifications?
You do not need to be a criminal defense attorney well-versed in constitutional criminal procedure to navigate this. Any civil attorney, no matter the area of practice, should be aware of the perils and pitfalls of parallel civil and criminal proceedings. This article will provide you with a brief overview of the issues and some of the remedies when confronted with this situation.
There are two major obstacles in parallel proceedings, the first, unwittingly waiving Johnny’s Fifth Amendment rights in your civil case, and two, having Johnny make incriminating admissions even if his rights are not legally waived.
Johnny can unwittingly waive his right to remain silent if he answers a complaint with specific denials under oath, responds to special interrogatories, requests for admissions, or even requests for production. If you don’t spot the issue early enough, trying to assert the Fifth Amendment midway through the discovery process will likely result in a successful motion to compel by opposing counsel. If waived, opposing counsel will have a field day at Johnny’s deposition, and there will be very little you can do about it.
But you’re smarter than that. You caught it early, and Johnny will not be waiving his rights. Pat yourself on the back…but don’t assume you’re out of the minefield quite yet.
Many experienced civil attorneys believe that Johnny should be as cooperative as possible without waiving. This is risky. Any admission made in the civil case, whether it results in a waiver or not, can still likely be used in a future criminal proceeding. Under state and federal rules of evidence, a defendant’s statement is admissible even if the defendant asserts his Fifth Amendment right and elects not to testify at his trial. If the statement is relevant and has proper foundation, the jury will hear it and the damage will be done.
So, you invoke, and you invoke hard. You will quickly realize invoking is not all it is cracked up to be. Depending on the nature of the case, successfully invoking your client’s Fifth Amendment rights can prevent you from meaningfully defending your client from the plaintiff’s claims. Discovery comes to a screeching halt. Invoking could even result in an adverse inference jury instruction at trial. Your client is on the horns of a rather prickly dilemma. What to do?
Courts are sensitive to the unfairness of Johnny having to choose between his freedom and his fortune, his rights and his riches. Johnny should petition the court to stay his civil case until the criminal case resolves. That would allow him to assert his Fifth Amendment right in his criminal case without sacrificing his defense in his civil case. Generally, courts look at six factors to determine whether a stay is appropriate, including: whether there is a common core of facts between the two actions, the interests of the plaintiff and burden on defendant, the interests of the court and public, and the status of the criminal case.
If the stay is denied, Johnny should at least request a temporary stay on discovery. If that is denied, a protective order on the discovery should be requested, so if prosecutors attempt to gain access to the discovery in the criminal case, his defense attorney will have a stronger objection.
There are many reasons why prosecutors love parallel proceedings. Civil discovery is often more encompassing than criminal discovery laws. There are depositions, admissions – things prosecutors can only dream of. In my time as a prosecutor, I would often dig through civil discovery, pull domestic violence restraining order transcripts from Stanley Mosk on my lunch hour, and subpoena all kinds of admissions. It was like taking a metal detector to a busy beach on a summer day.
No area of law is immune from potential criminal action. Often, a civil case is a treasure trove of incriminating information for law enforcement and prosecutors. But recognizing the issue and having the legal tools to navigate parallel proceedings gives you and Johnny a substantially higher likelihood of success in both of his cases.
BIO:
Kevin is a native Angeleno and attorney specializing in criminal defense. He worked as a prosecutor in Los Angeles, and then for the Law Offices of Donald Etra. Kevin now represents individuals and corporations under investigation or accused of crimes, including misdemeanors and felonies (emphasis on white collar/fraud), both state and federal.