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How To Get Anything On Anybody
How To Get Anything
On Anybody

The American Woman's Guide to Background Investigations
The American Woman's Guide to Background Investigations

David Ball on Damages: A Plaintiff's Attorney's Guide for Personal Injury and Wrongful Death Cases
David Ball on Damages: A Guide for Personal Injury and Wrongful Death Cases

Do It Yourself:
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Organize a Civil Case for Evaluation

Before any attorney can reasonably evaluate your case and advise you about the possibility of recovering damages related to a crime committed against you, they need a huge wealth of information. The more information (and the RIGHT information!) you can provide, the faster you'll get an answer and the better position your attorney will be in to represent you and to come up with realistic expectations about what might happen and the likelihood of recovery. Also, you'll likely be paying by the hour, and the more hours of work you do yourself, the more money you'll save and the faster your case can progress.

Facts about personal relationships, in particular, may affect the strength of the victim's civil case and may shed light on the probability of judgment collection. Specifically, the following types of data may serve as a start in gathering information relating to liability and collectability.

For example, if you're a victim of domestic violence, start out by writing down the facts surrounding the victimization. Within the specific context of potential civil remedies, the following questions should be addressed:

Did your partner physically abuse you? If the answer is yes, consider the activity as a possible assault and battery and make sure to note the severity and degree of your injuries.

Did the batterer ever encourage another person to physically abuse you? This might be a co-conspirator from whom you might collect a judgment.

How severe were your injuries? The more severe the injuries, the greater the likelihood that substantial damages might be awarded.

Did the batterer threaten you and/or the children? From a reasonable person's perspective, might the threats be considered outrageous? Were the threats made while the abuser was waving a gun or other weapon? If yes, the batterer might be found liable for intentional or reckless infliction of emotional distress.

You should also identify possible defenses which the batterer might raise. Is it possible that the batterer may claim that you provoked the physical abuse? How long ago did the crime occur? (This is important because you must file a case within the statute of limitations in your state or in the jurisdiction where the abuse occurred).

You might consider making a chart for your attorney:

  • Day
  • Date
  • Time
  • Location
  • I was at this location because...
  • Events
  • I do / do not know the perpetrator....
  • Perpetrator was at this location because....
  • I reported this to
    • police
    • friends
    • family
    • doctor/nurse
    • employer
    • security
    • school
    • other
  • documents
    • copy of police report
    • copy of doctor notes
    • copy of phone records
    • copy of credit card records
    • copy of phone messages
  • photos of injuries
  • copies of emails
  • list of witnesses

Is There Anything TO Win?

In addition to thinking about questions of civil liability, you should also think about the possibility of collecting a jury award from the perpetrator. Most victims often find it far easier to establish that the perpetrator is liabile (particularly if there is a criminal conviction), than it is to actually collect on a civil judgment from perpetrators.

While winning the civil liability case can represent a moral victory, victims also feel that true justice demands that judgments for damages be fully satisfied. Key factual information relating to the likelihood of collecting on a judgment can help civil attorneys provide you with realistic expectations of recovery.

There are a variety of ways to find out about a perpetrator's assets and preserve them pending the outcome of the civil case. Many victims know their perpetrators and can identify full names, dates of birth, social security numbers and other information that can facilitate in the identification of assets. Pre-sentence investigations, conducted during the course of criminal proceedings, may also yield clues as to the perpetrator's assets. Precautionary attachment orders may subsequently be requested to temporarily freeze the assets. Such orders serve to prevent the defendant from transferring, hiding or wasting assets or otherwise avoiding payment of civil judgments. If you retain an attorney, they might in turn hire a private investigator to hunt for assets; or, you can look around yourself or use your own investigator to see if you can uncover assets BEFORE going to an attorney. US Search has a decent online asset search feature which can be helpful.

Finally, seemingly indigent perpetrators may have hidden assets, a wealthy family or they may earn money in the future. While civil judgments may not be immediately collectable, they may be preserved until assets are obtained by the perpetrators at a later date. Another source is the "unclaimed property" offices in each state. These offices hold assets of all types including: unclaimed utility deposits, things left in safe deposit boxes, checks of various sorts that never got delivered, benefits of wills and other legal proceedings, and tons of other things that translate to dollars. Often this money is sitting there because someone died, moved, or for some other reason never received notification that they had money coming to them. People have found millions of dollars, so check out your state unclaimed property office at the Inside Edition website. It's free, so check your own name as well - maybe a distant relative remembered you in their will!

Attorneys are experts in figuring out how likely it will be for you to collect on a judgement if one is obtained. Your notes gathered after reading this section can also serve to highlight for your attorney, a financial value in representing your interests.

Insurance as an Asset

Even if a perpetrator does not appear to have any assets from which to collect a judgment, he might be insured. Increasingly, victims and their civil attorneys are obtaining judgment satisfaction from insured perpetrators' insurance carriers.

Insurance is a contract between an insurance carrier (the insurer) and the insured. The insurance company promises to protect the insured from incurring financial liability for occurrences of the events covered in the policy. Generally, in order for a victim to collect from an insurer, four conditions must be met:

1) The perpetrator must be insured

2) The policy must provide coverage for the act committed by the perpetrator that caused the victim harm

3) The insured perpetrator must be found liable to the victim or plaintiff; and

4) No exclusions can apply for the particular liabilities alleged unless there are applicable exceptions to the exclusions.

Insurance policies are designed to protect people from the financial consequences of accidental injuries that they unintentionally cause others. They are not designed to protect people from their own willful, criminal behavior. Thus, almost all policies contain standard exclusions for injuries that are expected or intended by the person insured. These exclusions cause victims and their attorneys to greatly underrate the possibility of collection on insured perpetrators' policies. Although the policy exclusions, including intended acts of the insured and expected injuries caused by acts of the insured, are standardized, state courts are now applying new interpretations to the boiler plate language-- interpretations often based on a desire to see victims compensated.

Attorneys for insurance companies urge civil courts to dismiss the insurers from victim versus perpetrator cases by raising policy exclusions from coverage. Civil attorneys for victims, on the other hand, challenge the insurers by raising exceptions to the exclusions. Victim attorneys strive to show that an insured perpetrator was unable to form the intent to harm the victim (mental deficiency), or that the victim's injuries were unexpected or unforeseen (mistake of fact or law), or that the perpetrator acted in self defense--the legal theory being that self defense is a lawful use of force which the insured never meant to bargain away when purchasing insurance. If any one of these exceptions is successfully proven, the victim can often turn to the insured perpetrator's carrier for civil judgment satisfaction.

Diverse court decisions indicate that it is becoming increasingly more difficult to delineate a line between insurer's coverage and non-coverage. This ambiguity can often work in favor of victims seeking to collect on civil judgments from insurers. Consequently, victims, providers and civil attorneys should not discount the possibility that the perpetrator might be insured and that the victimization might be covered by the insured perpetrator's policy.

Just as victims and their attorneys sometimes underrate the viability of exclusion exceptions, they also misinterpret the extent of policy coverage by thinking that a policy title is descriptive of the extent of coverage. In fact, most policies are much broader than their titles suggest. The chart below describes the extent of coverage commonly provided by specific types of policies.

Possible sources to satisfy civil judgments

Perpetrator's sources of income:

-- Wages
-- Benefits (pension payments and annuities)
-- Unearned income (dividends, interest, gifts)
-- Trust fund income
-- Tax refunds
-- Government entitlements

Perpetrator's property and holdings:

-- Personal property (cars, jewelry, etc.)
-- Real property (home, land, etc.)
-- Bank accounts
-- All debts owed to the perpetrator
-- Financial holdings (stocks, bonds, etc.)
-- Partnership interests
-- Future interests in real and personal property through wills, trusts, etc.

Sample case intake information

When considering taking an abuser or offender to civil court, it is very helpful to get your ducks in a row - so that you and/or your attorney get get a true picture of what you'll be up against and then be able to evaluate whether or not you should invest time, effort, and emotions.

About the victim:

- Name, address and telephone number
- Date of birth, social security number
- Employer: name, address, telephone and work start date
- Marital Status: if married, name of spouse, spouse's history of employment
- Dependents, names and ages

If victim is deceased, date and time of death, cause of death, names of decedent's immediate family, autopsy report (if available), death certificate, decedent's will, name of administrator or executor of estate, funeral home name and charges.

About the criminal event:

- Date and time of criminal occurrence
- Location of events, addresses and description of premises
- Why victim was at the location
- Why the perpetrator was at the location
- How did the perpetrator gain access to the victim?
- What happened to the victim?
- Identification of witnesses to any stage of the occurrence
- Identification of known physical evidence
- Police department where complaint was filed
- Detective or officer to assigned to the case
- Complaint or report number
- Statements taken as part of the investigation
- Who is prosecuting the case?
- What's happening with the criminal case now?

About the perpetrator:

If the perpetrator is known to the victim: nature of relationship to the victim, perpetrator's name and aliases, address, date of birth and social security number, employment information and any information known about perpetrator's assets and insurance coverage.

If the perpetrator is not known to the victim: physical description of the perpetrator, identifying features.

If the perpetrator is not known to the victim but a third party might bear some liability for the occurrence of the crime, details surrounding the crime and where it was committed become increasingly important eg. information about where the rape occurred, description of the hotel security system, a hotel receipt of prior notice of security system deficiencies, or occurrences of prior similar crimes.

About damages sustained by the victim:

- Degree of physical, emotional and psychological injuries sustained
- Extent and cost of anticipated treatment
- Identification of hospital, physician services
- Identification of property damage
- Lost amount of victim's or victim spouse's time from work
- Has the victim filed for disability?
- Identification of loss of support amounts
- Status of insurance involved (including policy number)
- Crime Victim Compensation application status

Selecting an Attorney

Look for attorneys who have experience handling personal injury, wrongful death and/or professional malpractice claims on behalf of plaintiffs. Attorneys who have experience working with crime victims are preferable. The National Association of Personal Injury Lawyers maintains a national directory of attorneys and a source of information for the public, media and legislators in support of the personal injury litigation and to promote justice for the aggrieved.

A good way to do a little looking around is to try Legal Match. Register for their free service, then post your case anonymously. Attorneys read your case and contact you if they are willing to take the case. You remain anonymous to attorneys until YOU decide to pursue your case.

A productive attorney-client relationship is based upon the ability of both sides to communicate fully and effectively with each other. Victims should feel comfortable fully disclosing all information to their attorneys. Attorneys should be able to effectively explain all aspects of legal proceedings to victims and they should be responsive to victims' needs and requests.

Victims should fully understand all details of any retainer agreement prior to signing it. If victims have questions, they should feel comfortable in discussing them with the attorney. If questions persist, they may call local bar associations about laws and regulations pertaining to contingency fee arrangements, retainers, etc.

Victims should be clear about what they expect their attorneys to do, and attorneys should be clear about what services they are rendering and the likelihood of obtaining desired results. For example, a civil attorney may be retained on a contingency fee basis to sue a perpetrator, but not retained to handle a State crime victim compensation claim or to accompany the client victim to criminal court. These services may be available but may entail an additional charge. Reasonable expectations on both sides can avoid later disappointment and frustration.

Victims should feel free to consult with several lawyers before selecting one. Lawyers are professionals and good consumer practice, with respect to selecting a professional, is to obtain a second opinion.

Victims should cooperate, as fully as possible, with their attorneys; such cooperation is necessary for successful representation of their interests. Victims have the right to expect their attorneys to be understanding, respectful, and responsive to their needs. Attorneys have the right to expect their clients to be honest and willing to participate in the building of their own cases.

Paying Your Attorney

Most attorneys accept cases involving personal injuries on a contingency fee basis. The victim assigns a percentage of the collected damage award, often one-third, to the civil attorney as compensation for services rendered. In some states, the percentage is set by statute. Under the contingency fee arrangement, the attorney is not paid for his or her services until or unless liability is proven and the judgment is collected. Thus, it is critical for victims to make civil attorneys aware of facts showing perpetrator liability and the likelihood of judgment satisfaction.

Making complete, accurate and detailed notes can help make it mores likely that an attorney will favorably assess meritorious case facts. They'll also help YOU determine whether it is in your best interest to pursue civil remedial relief.

While civil attorneys may be sympathetic to the plight of victims, their interests, out of economic necessity, are focused on the probability of proving liability and collecting on a judgment. Attorneys are reluctant to expend their time and needlessly raise your hopes if there is little or no likelihood that the victim will benefit from the process.

Depending on the type of case and your income levels, you might be able to get some assistance from your local Legal Aid or similar program. If the amount of your damages is relatively small, you might consider going to small claims court yourself, since you can generally do this without an attorney.

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Last Updated: May 5, 2011