Parallel proceedings in Florida's state and federal courts: Fifth Amendment considerations.

• Author: Holt, Michael R.

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Crime victims rightfully demand justice. Justice, however, is not limited to Florida's criminal courts. Often, the same unlawful conduct prompting criminal prosecution also gives rise to civil liability. The civil court system not only provides an additional means of obtaining justice and closure, but it also enables victims to become financially whole. A well-known example is the case of O.J. Simpson. Although acquitted of murdering his ex-wife and another man in 1995, a jury found Simpson liable for wrongful death in 1997 and ordered him to pay $33.5 million to the victims' families. (1) A more recent example involves nearly 300 persons who were injured or who lost family members in a massive Rhode Island night club fire in 2003. Following the criminal sentencing of certain persons responsible for the tragedy, victims filed a civil lawsuit alleging negligence and carelessness against these and other defendants. (2)

In many instances, criminal proceedings conclude before the commencement of the civil suit. This is not always the case, however, and civil litigation and criminal proceedings often overlap. Special considerations arise in these parallel proceedings, particularly when the civil case moves forward at the same rate or more quickly than the criminal case. When this occurs, defendants in the civil litigation must make an extremely difficult choice: Participate in the civil matter and permanently waive their Fifth Amendment right against self-incrimination, or remain silent, and in all likelihood, face the probability of a sizable adverse judgment. (3)

This dilemma is not without a solution, and courts can alleviate any prejudice by temporarily suspending discovery or briefly continuing the civil case. The standards by which Florida's state and federal courts consider these requests, however, are not uniform. Florida's appellate courts have not developed well-defined guidelines. The 11th Circuit applies a more rigid test which affords relief only if waiving the Fifth Amendment protection would result in a certain loss of the civil case. This standard contrasts the multifactor balancing test employed by other federal and state courts.

The multifactor test enables courts to take additional matters into consideration when analyzing whether to stay or limit pretrial activity in a civil case. As set forth below, civil practitioners representing defendants in parallel proceedings must remain cognizant of the applicable standards when seeking relief. State court practitioners may urge application of the multifactor balancing test. Federal practitioners faced with the less flexible standard must focus on how asserting the Fifth Amendment privilege guarantees the loss of the civil proceeding.

Fifth Amendment Considerations in Florida State Courts

The Fifth Amendment to the U.S. Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." (4) It protects witnesses against making disclosures which they reasonably believe might incriminate them in future proceedings. (5) Invoking the Fifth Amendment does not, however, preclude the fact finder in a civil matter from drawing an adverse inference. (6) Moreover, litigants cannot make "blanket" assertions of the privilege; rather, they must invoke it on a question-by-question basis. (7) Once a witness waives the privilege, however, it is gone forever. (8)

The potential impact of invoking the Fifth Amendment in civil proceedings depends upon the status of the party invoking the privilege. Litigants pursuing affirmative relief face an uphill battle. Courts are hesitant, and rightfully so, to permit civil plaintiffs to avoid discovery obligations or trial through invocation of the Fifth Amendment. In fact, "[w]hen a plaintiff in a civil action invokes the Fifth Amendment privilege, courts often dismiss the plaintiff's action or strike plaintiff's pleadings." (9) Conversely, "where a defendant has invoked the Fifth Amendment privilege against self-incrimination he will usually not suffer a similar detriment because a defendant is not generally seeking affirmative relief and is before the court involuntarily." (10) Defendants in the latter situation quite naturally seek stays of discovery or trial "so that the defendant's assertion of this constitutional right does not preclude him from defending a civil suit." (11)

Florida's appellate courts have not comprehensively addressed and resolved the issue of whether to grant a continuance or limit pretrial discovery when a defendant faces a parallel criminal prosecution. In Kerben v. Intercontinental Bank, 573 So. 2d 976 (Fla. 5th DCA 1991), the Fifth District granted certiorari to quash an order granting an indefinite stay of a civil proceeding pending the outcome of a criminal matter involving a nonparty witness. (12) The underlying civil action involved an attorney's claim against a bank for allegedly honoring dozens of checks forged by a former legal assistant. (13) The legal assistant was a defendant in the civil lawsuit, but had partial final judgment entered against her in September 1998. (14) The defendant bank deposed the legal assistant, who asserted her Fifth Amendment privilege throughout. (15) The defendant then filed a motion to stay or abate, arguing that, because the assistant was a key witness in the civil lawsuit, the ongoing criminal proceeding would impede the bank's ability to defend against the underlying accusations. (16) The trial court granted the motion, staying the case "'until the impediments for proceeding ... have been alleviated.'" (17)

The plaintiff argued that an indefinite stay, pending resolution of charges against a nonparty witness, departed from the essential requirements of law. The appellate court agreed. The court noted that "[t]here is a dearth of authority dealing with the use of a stay based on invocation of the privilege against self-incrimination by a witness in a civil lawsuit." (18) The court rejected the defendants' claim that they would be "prejudiced" without the stay, noting that the assistant's testimony would not likely resolve the issue of whether the signatures were genuine and that the absence of the witness did not "make this lawsuit impossible for either party to try." The court also found prejudice to the plaintiff due to the indefinite nature of the stay. The court concluded that "[t]o abate this action indefinitely based solely on the ground that a key witness is 'unavailable' to the defendant is an abuse of the trial court's broad discretion and departs from the essential requirements of law." (19)

In Rappaport v. Levy, 696 So. 2d 526 (Fla. 3d DCA 1997), the Third District reversed an order staying a civil action where the defendant had yet to assert the Fifth Amendment privilege during a deposition. (20) The underlying civil action in that case involved a wrongful termination claim. (21) The defendants claimed the termination was justified based upon the plaintiff's improper use of medication and theft. (22) The defendants lodged a criminal complaint in connection with this conduct. (23) Following several agreed stays of discovery, the defendants noticed the civil case for trial. The plaintiff moved to strike the notice. The defendants argued that the plaintiff's parallel criminal proceeding thwarted their attempts to complete discovery and conduct the trial. In the meantime, the criminal proceedings against the plaintiff were dismissed and the state appealed the dismissal. That proceeding remained pending at the time of the court's opinion.

The trial court issued an order denying the motion to strike, lifting the previous stays of discovery and allowing both sides to take depositions. The court stayed the trial, however, until the plaintiff was "'in a position where he can testify at trial without compromising his Fifth Amendment Privilege.'" (24) The Third District Court of Appeal reversed the ruling as premature because the plaintiff had not yet asserted his Fifth Amendment right during a deposition. (25) The court then noted that if the plaintiff testified at a deposition without invoking the right, the matter would be moot. (26) If the plaintiff did invoke the privilege, "the trial court can enter a ruling based on a properly developed record." (27)

The Fourth District most recently confronted, but did...